0001193125-17-299647.txt : 20170929 0001193125-17-299647.hdr.sgml : 20170929 20170929164458 ACCESSION NUMBER: 0001193125-17-299647 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20170926 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20170929 DATE AS OF CHANGE: 20170929 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AB Private Credit Investors Corp CENTRAL INDEX KEY: 0001634452 IRS NUMBER: 000000000 STATE OF INCORPORATION: MD FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 814-01196 FILM NUMBER: 171111988 BUSINESS ADDRESS: STREET 1: 1345 AVENUE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10105 BUSINESS PHONE: (212) 969-1000 MAIL ADDRESS: STREET 1: 1345 AVENUE OF THE AMERICAS CITY: NEW YORK STATE: NY ZIP: 10105 FORMER COMPANY: FORMER CONFORMED NAME: AB Private Credit Corp DATE OF NAME CHANGE: 20150219 8-K 1 d460253d8k.htm AB PRIVATE CREDIT INVESTORS CORPORATION AB PRIVATE CREDIT INVESTORS CORPORATION

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

Current Report

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): September 29, 2017 (September 26, 2017)

 

 

AB PRIVATE CREDIT INVESTORS CORPORATION

(Exact name of registrant as specified in its charter)

 

 

 

Maryland   000-55640   81-2491356

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

1345 Avenue of the Americas

New York, NY 10105

(Address of principal executive offices and zip code)

Registrant’s telephone number, including area code: (212) 969-1000

 

 

Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

Emerging growth company  ☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 


Item 1.01. Entry into a Material Definitive Agreement.

On September 29, 2017, AB Private Credit Investors Corporation (the “Company”) and State Street Bank and Trust Company (the “Administrator”) entered into an agreement for the Administrator to provide the Company with administrative services necessary for the Company’s operation (the “Administration Agreement”). Pursuant to the Administration Agreement, the Administrator provides the Company with, among other things, office facilities, equipment, clerical, bookkeeping and record keeping services. In addition, the Administrator assists the Company in the filing of the Company’s tax returns. As detailed in the Administration Agreement, the Company will reimburse the Administrator for the costs and expenses incurred by the Administrator in performing its obligations pursuant to the Agreement.

On September 29, 2017, the Company and State Street Bank and Trust Company (the “Custodian”) entered into an agreement pursuant to which the Custodian was appointed the Company’s custodian to hold securities, cash, and other assets on behalf of the Company.

On September 29, 2017, the Company and AB Private Credit Investors LLC (the “Adviser”) entered into an agreement (the “Expense Support and Conditional Reimbursement Agreement”) to limit certain of the Company’s Operating Expenses, as defined in the Expense Support and Conditional Reimbursement Agreement, to no more than 1.5% of the Company’s average quarterly gross assets. To achieve this percentage limitation, the Adviser has agreed to reimburse the Company for certain Operating Expenses on a quarterly basis, and the Company has agreed to later repay such amounts, pursuant to the terms of the Expense Support and Conditional Reimbursement Agreement.

On September 26, 2017, the Company and AllianceBernstein Investor Services, Inc. (“ABIS”), an affiliate of the Company, entered into an agreement pursuant to which ABIS will provide transfer agent services to the Company (the “Transfer Agency Agreement”).

On September 26, 2017, the Company finalized the dividend reinvestment plan (the “DRIP”) of the Company, a form of which was approved by the board of directors of the Company on August 7, 2017. Pursuant to the DRIP, the stockholders of the Company will receive dividends or other distributions in cash unless a stockholder elects to reinvest his or her dividends and other distributions.

The information set forth above with respect to the Administration Agreement, the Custodian Agreement, the Transfer Agent Agreement, the Expense Support and Conditional Reimbursement Agreement and the Dividend Reinvestment Plan does not purport to be complete in scope and is qualified in its entirety by the full text of each respective agreement, which are filed as Exhibit 10.1, Exhibit 10.2, Exhibit 10.3, Exhibit 10.4 and Exhibit 10.5, respectively, hereto and are incorporated into this Current Report on Form 8-K by reference.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit No.

  

Description

10.1    Administration Agreement, dated as of September 29, 2017
10.2    Custodian Agreement, dated as of September 29, 2017
10.3    Expense Support and Conditional Reimbursement Agreement, dated as of September 29, 2017
10.4    Transfer Agency Agreement, dated as of September 26, 2017
10.5    Dividend Reinvestment Plan, dated as of September 26, 2017


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Date:    September 29, 2017     AB PRIVATE CREDIT INVESTORS CORPORATION
    By:   /s/ Wesley Raper
      Wesley Raper
      Chief Financial Officer and Treasurer
EX-99.10.1 2 d460253dex99101.htm ADMINISTRATION AGREEMENT Administration Agreement

Exhibit 10.1

SERVICES AGREEMENT

This Services Agreement (“Agreement”) dated as of September 29, 2017 (“Agreement Date”) and effective as of September 29, 2017 “Effective Date”), is by and between State Street Bank and Trust Company, a Massachusetts trust company (the “Service Agent”), and each Fund set forth on Schedule A, severally and not jointly (each a “Fund” and collectively, the “Funds”).

WHEREAS, each of the Funds is a closed-end management investment company that has elected or will elect to be regulated as a business development company (“BDC”) under the Investment Company Act of 1940, as amended (the “1940 Act”) prior to the commencement of its operations;

WHEREAS, each of the Funds desires to retain the Service Agent to furnish certain services to the Fund and the Service Agent is willing to furnish such services, on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, the parties hereto agree as follows:

 

1. APPOINTMENT OF SERVICE AGENT

Each of the Funds hereby appoint the Service Agent for purposes of providing certain services to the Fund for the period and on the terms set forth in this Agreement. The Service Agent accepts such appointment and agrees to render the services stated herein.

In the event that any new Fund is established that wishes to retain the Service Agent to perform the services hereunder, the Fund shall notify the Service Agent in writing. Upon written acceptance by the Service Agent, such Fund(s) shall become subject to the provisions of this Agreement to the same extent as the existing Funds, except to the extent that such provisions (including those relating to compensation and expenses payable) may be modified with respect to such Fund in writing by the Fund and the Service Agent at the time of the addition of such Fund.

 

2. DELIVERY OF DOCUMENTS

Each of the Funds will make available to the Service Agent copies of each of the following documents and all future amendments and supplements, if any:

 

  a. The Fund’s organizational documents and By-laws;

 

  b. The Fund’s currently effective registration statement under the Securities Exchange Act of 1934, as amended (the “1934 Act”) or the Securities Act of 1933, as amended (the “1933 Act”) (each, a “Registration Statement”) and each Prospectus and Statement of Additional Information (“SAI”) or private placement memorandum, as applicable, relating to the Fund and all amendments and supplements thereto as in effect from time to time;

 

  c. Copies of the resolutions of the Board of Directors of the Fund (the “Board”) certified by the Fund’s Secretary authorizing (1) the Fund to enter into the servicing arrangements with State Street; and (2) certain individuals on behalf of the Fund to give instructions to the Service Agent;

 

  d. A copy of the investment advisory agreement between the Fund and its investment adviser(s); and


  e. Such other certificates, documents or opinions which the Service Agent may, in its reasonable discretion, deem necessary or appropriate in the proper performance of its duties.

 

3. REPRESENTATIONS AND WARRANTIES OF THE SERVICE AGENT

The Service Agent represents and warrants to the Funds that:

 

  a. It is a Massachusetts trust company, duly organized and existing under the laws of The Commonwealth of Massachusetts;

 

  b. It has the corporate power and authority to carry on its business in The Commonwealth of Massachusetts;

 

  c. All requisite corporate proceedings have been taken to authorize it to enter into and perform this Agreement;

 

  d. No legal or administrative proceedings have been instituted or threatened which would materially impair the Service Agent’s ability to perform its duties and obligations under this Agreement; and

 

  e. Its entrance into this Agreement shall not cause a material breach or be in material conflict with any other agreement or obligation of the Service Agent or any law or regulation applicable to it.

 

4. REPRESENTATIONS AND WARRANTIES OF THE FUNDS

Each of the Funds represents and warrants to the Service Agent that:

 

  a. The Fund is an entity, duly organized, existing and in good standing under the laws of its state of formation or organization;

 

  b. The Fund has the requisite power and authority under applicable laws and by its organizational documents and By-laws to enter into and perform this Agreement;

 

  c. All requisite proceedings have been taken to authorize it to enter into and perform this Agreement;

 

  d. The Fund is a closed-end management investment company that has elected or will elect to be regulated as a business development company under the 1940 Act before it commences operations and it intends to elect to be treated for federal income tax purposes, and intends to qualify annually thereafter, as a regulated investment company under the Internal Revenue Code of 1986, as amended (the “Code”);

 

  e. A Registration Statement under the 1934 Act with respect to the Fund has been filed and will be effective and remain effective during the term of this Agreement and, as of the Agreement Date and Effective Date of this Agreement, all necessary filings under the securities laws of the states in which the Fund offers or sells its shares have been made;

 

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  f. No legal or administrative proceedings have been instituted or threatened which would impair the Fund’s ability to perform its duties and obligations under this Agreement;

 

  g. The Fund’s entrance into this Agreement will not cause a material breach or be in material conflict with any other agreement or obligation of the Fund or any law or regulation applicable to it;

 

  h. As of the close of business on the Effective Date of this Agreement, the Fund is authorized to issue shares of common stock; and

 

  i. Where information provided by the Fund or the Fund’s Investors includes information about an identifiable individual (“Personal Information”), the Fund represents and warrants that it has obtained all consents and approvals, as required by all applicable laws, regulations, by-laws and ordinances that regulate the collection, processing, use or disclosure of Personal Information, necessary to disclose such Personal Information to the Service Agent, and as required for the Service Agent to use and disclose such Personal Information in connection with the performance of the services hereunder. The Fund acknowledges that the Service Agent may, subject to the terms of this Agreement, perform the Services, and may use and disclose Personal Information outside of the jurisdiction in which it was initially collected by the Fund, including the United States and that information relating to the Fund, including Personal Information may be accessed by national security authorities, law enforcement and courts. The Service Agent shall be kept indemnified by and be without liability to the Fund for any action taken or omitted by it in reliance upon this representation and warranty, including without limitation, any liability or costs in connection with claims or complaints for failure to comply with any applicable law that regulates the collection, processing, use or disclosure of Personal Information.

 

5. SERVICES

The Service Agent shall provide the services as listed on Schedule B, subject to the authorization and direction of each Fund and, in each case where appropriate, the review and comment by each Fund’s independent accountants and legal counsel and in accordance with procedures which may be established from time to time between each Fund and the Service Agent.

The Service Agent shall perform such other services for each Fund that are mutually agreed to by the parties from time to time, for which each Fund will pay such fees as may be mutually agreed upon, including the Service Agent’s reasonable agreed upon out-of-pocket expenses. The provision of such services shall be subject to the terms and conditions of this Agreement.

The Service Agent shall provide the office facilities and the personnel determined by it to perform the services contemplated herein.

 

6. FEES; EXPENSES; EXPENSE REIMBURSEMENT

The Service Agent shall receive from the Funds such compensation for the Service Agent’s services provided pursuant to this Agreement as may be agreed to from time to time in a written Fee Schedule approved by the parties. The fees are accrued monthly and billed monthly and shall be due and payable upon receipt of the invoice. Upon the termination of this Agreement before the end of any month, the fee for the part of the month before such termination shall be prorated according to the proportion which such part bears to the full monthly period and shall be payable upon the date of

 

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termination of this Agreement. In addition, the Funds shall reimburse the Service Agent for its reasonable agreed upon out-of-pocket costs incurred in connection with this Agreement. All rights of compensation and expense reimbursement under this Agreement for services performed as of the termination date shall survive the termination of this Agreement.

The Funds agrees promptly to reimburse the Service Agent for any equipment and supplies specially ordered by or for the Funds through the Service Agent and for any other expenses not contemplated by this Agreement that the Service Agent may incur on the Funds’ behalf, all at the Funds’ request or with the Funds’ consent.

The Funds will bear all expenses that are incurred in its operation and not specifically assumed by the Service Agent. Expenses to be borne by the Funds, include, but are not limited to: organizational expenses; cost of services of independent accountants and the Funds’ outside legal and tax counsel (including such counsel’s review of Registration Statements, Form N-54-A, Form N-2, Forms 10-Q and 10-K and Form 8-K, proxy materials, federal and state tax qualification as a regulated investment company and other notices, registrations, reports, filings and materials prepared by the Service Agent under this Agreement); cost of any services contracted for by the Funds directly from parties other than the Service Agent; cost of trading operations and brokerage fees, commissions and transfer taxes in connection with the purchase and sale of securities for the Funds; investment advisory fees; taxes, insurance premiums and other fees and expenses applicable to its operation; costs incidental to any meetings of shareholders including, but not limited to, legal and accounting fees, proxy filing fees and the costs of preparation (e.g., typesetting, XBRL-tagging, page changes and all other print vendor and EDGAR charges, collectively referenced to herein as “Preparation”), printing, distribution and mailing of any proxy materials; costs incidental to Board meetings, including fees and expenses of Board members; the salary and expenses of any officer, director\trustee or employee of the Funds; costs of Preparation, printing, distribution and mailing, as applicable, of the Funds’ Registration Statements and any amendments and supplements thereto and shareholder reports; cost of Preparation and filing of the Funds’ tax returns, Form N-54-A, Form N-2, Forms 10-Q and 10-K and Form 8-K, and all notices, registrations and amendments associated with applicable federal and state tax and securities laws; all applicable registration fees and filing fees required under federal and state securities laws; the cost of fidelity bond and D&O/E&O liability insurance; and the cost of independent pricing services used in computing the Fund’s net asset value.

The Service Agent is authorized to and may employ, associate or contract with such person or persons as the Service Agent may deem desirable to assist it in performing its duties under this Agreement; provided, however, that the compensation of such person or persons shall be paid by the Service Agent and that the Service Agent shall be as fully responsible to the Funds for the acts and omissions of any such person or persons as it is for its own acts and omissions.

 

7. INSTRUCTIONS AND ADVICE

a.        At any time, the Service Agent may apply to any officer of the Funds or his or her designee for instructions and may, at the request of or with the knowledge of the Funds or the Advisor, consult with outside counsel for the Funds or the independent accountants for the Funds at the expense of the Funds, or with its own legal counsel at its own expense, with respect to any matter arising in connection with the services to be performed by the Service Agent under this Agreement.

b.        The Service Agent shall not be liable, and shall be indemnified by the Funds, for any action taken or omitted by it in good faith in reliance upon any such instructions of an officer of a Fund

 

4


or the Advisor or advice or upon any paper or document reasonably believed by it to be genuine and to have been signed by an officer of the Fund or the Advisor. The Service Agent shall not be held to have notice of any change of authority of any person until receipt of written notice thereof from a Fund or the Advisor. Nothing in this section shall be construed as imposing upon the Service Agent any obligation to seek such instructions or advice, or to act in accordance with such advice when received.

 

8. LIMITATION OF LIABILITY AND INDEMNIFICATION

The Service Agent shall be responsible for the performance only of such duties as are set forth in this Agreement and, except as otherwise provided under Section 6, shall have no responsibility for the actions or activities of any other party, including other service providers. The Service Agent shall have no liability in respect of any loss, damage or expense suffered by the Funds insofar as such loss, damage or expense arises from the performance of the Service Agent’s duties hereunder in reliance upon records that were maintained for the Funds by entities other than the Service Agent prior to the Service Agent’s appointment hereunder. The Service Agent shall have no liability for any error of judgment or mistake of law or for any loss or damage resulting from the performance or nonperformance of its duties hereunder unless solely caused by or resulting from the negligence or willful misconduct of the Service Agent, its officers or employees. The Service Agent shall not be liable for any special, indirect, incidental, punitive or consequential damages, including lost profits, of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of this Agreement or for any such damages arising out of any act or failure to act hereunder, each of which is hereby excluded by agreement of the parties regardless of whether such damages were foreseeable or whether either party or any entity had been advised of the possibility of such damages. In any event, the Service Agent’s liability for each calendar year (a “Liability Period”) with respect to each Fund under this Agreement regardless of the form of action or legal theory shall be limited to its total annual compensation earned and fees payable hereunder with respect to such Fund during the preceding Compensation Period, as defined herein, for any liability or loss suffered by such Fund including, but not limited to, any liability relating to qualification of such Fund as a regulated investment company or any liability relating to such Fund’s compliance with any federal or state tax or securities statute, regulation or ruling during such Liability Period, except as otherwise agreed in writing. “Compensation Period” shall mean the calendar year ending immediately prior to each Liability Period in which the event(s) giving rise to the Service Agent’s liability for that period have occurred. Notwithstanding the foregoing, the Compensation Period for purposes of calculating the annual cumulative liability of the Service Agent for the Liability Period commencing on the Effective Date of this Agreement and terminating on December 31, 2017 shall be the Effective Date of this Agreement through December 31, 2017, calculated on an annualized basis, and the Compensation Period for the Liability Period commencing January 1, 2018 and terminating on December 31, 2018 shall be the Effective Date of this Agreement through December 31, 2017, calculated on an annualized basis.

The Service Agent shall not be responsible or liable for any failure or delay in performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its control, including without limitation, work stoppage, power or other mechanical failure, computer vims, natural disaster, governmental action or communication disruption.

Each Fund shall indemnify and hold the Service Agent and its directors, officers, employees and agents harmless from all loss, cost, damage and expense, including reasonable fees and expenses for counsel, incurred by the Service Agent resulting from any claim, demand, action or suit in connection with the Service Agent’s acceptance of this Agreement with respect to such Fund, any action or omission by the Service Agent in the performance of its duties hereunder, or as a result of acting upon any instructions reasonably believed by the Service Agent to have been duly authorized by such Fund or upon reasonable reliance on information or records given or made by such Fund or the Advisor, provided that this indemnification shall not apply to actions or omissions of the Service Agent, its officers or employees in cases of its or their own negligence or willful misconduct.

 

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The limitation of liability and indemnification contained herein shall survive the termination of this Agreement.

 

9. CONFIDENTIALITY

The parties hereto agree that each shall treat confidentially all information provided by each party to the other party regarding its business and operations. All confidential information provided by a party hereto shall be used by the other party hereto solely for the purpose of rendering or receiving services pursuant to this Agreement and, except as may be required in carrying out this Agreement, shall not be disclosed to any third party. Neither party will use or disclose confidential information for purposes other than the activities contemplated by this Agreement or except as required by law, court process or pursuant to the lawful requirement of a governmental agency, or if the party is advised by counsel that it may incur liability for failure to make a disclosure, or except at the request or with the written consent of the other party. Notwithstanding the foregoing, each party acknowledges that the other party may provide access to and use of confidential information relating to the other party to the disclosing party’s employees, contractors, agents, professional advisors, auditors or persons performing similar functions.

The foregoing shall not be applicable to any information (i) that is publicly available when provided or thereafter becomes publicly available, other than through a breach of this Agreement, (ii) that is independently derived by a party hereto without the use of any information provided by the other party hereto in connection with this Agreement, (iii) that is required in any legal or regulatory proceeding, investigation, audit, examination, subpoena, civil investigative demand or other similar process, or by operation of law or regulation, or (iv) where the party seeking to disclose has received the prior written consent of the party providing the information, which consent shall not be unreasonably withheld.

The undertakings and obligations contained in this Section shall survive the termination or expiration of this Agreement for a period of three (3) years.

 

10. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS; RECORDS

The Funds assume full responsibility for complying with all securities, tax, commodities and other laws, rules and regulations applicable to it.

In compliance with the requirements of Rule 31a-3 under the 1940 Act, the Service Agent agrees that all records which it maintains for the Funds shall at all times remain the property of the Funds, shall be readily accessible during normal business hours, and shall be promptly surrendered upon the termination of the Agreement or otherwise on written request except as otherwise provided in Section 12. The Service Agent further agrees that all records that it maintains for the Funds pursuant to Rule 31a-1 under the 1940 Act will be preserved for the periods prescribed by Rule 31a-2 under the 1940 Act unless any such records are earlier surrendered as provided above. Records may be surrendered in either written or machine-readable form, at the option of the Service Agent as reasonably consistent with Service Agent’s practices with other registered management investment company clients of Service Agent.

 

11. SERVICES NOT EXCLUSIVE

The services of the Service Agent are not to be deemed exclusive, and the Service Agent shall be free to render similar services to others. The Service Agent shall be deemed to be an independent contractor and shall, unless otherwise expressly provided herein or authorized by the Funds from time to time, have no authority to act or represent the Funds in any way or otherwise be deemed an agent of the Funds.

 

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12. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT

 

  a. This Agreement shall be effective as of the Effective Date and remain in full force and effect for an initial term ending on September 29, 2019 (the “Initial Term”). After the expiration of the Initial Term, this Agreement shall automatically renew for successive one-year terms (each, a “Renewal Term”) unless a written notice of non-renewal is delivered by the non-renewing party no later than sixty (60) days prior to the expiration of the Initial Term or any Renewal Term, as the case may be.

 

  b. During the Initial Term and thereafter, either party may terminate this Agreement: (i) in the event of the other party’s material breach of a material provision of this Agreement that the other party has either (a) failed to cure or (b) failed to establish a remedial plan to cure that is reasonably acceptable, within thirty (30) days’ written notice of such breach, or (ii) in the event of the appointment of a conservator or receiver for the other party or upon the happening of a like event to the other party at the direction of an appropriate agency or court of competent jurisdiction. Upon termination of this Agreement pursuant to this paragraph with respect to the Funds or any Fund, the Funds or applicable Fund shall pay the Service Agent its compensation due and shall reimburse Service Agent for its costs, expenses and disbursements.

 

  c. In the event of: (i) any Fund’s termination of this Agreement with respect to the Fund for any reason other than as set forth in the immediately preceding paragraph or (ii) a transaction not in the ordinary course of business pursuant to which the Service Agent is not retained to continue providing services hereunder to the Funds (or its respective successor), the Funds or applicable Fund shall pay the Service Agent its compensation due through the end of the then-current term (based upon the average monthly compensation previously earned by Service Agent with respect to the Funds or such Fund) and shall reimburse the Service Agent for its costs, expenses and disbursements. Upon receipt of such payment and reimbursement, the Service Agent will deliver the Funds’ or such Fund’s records as set forth herein. For the avoidance of doubt, no payment will be required pursuant to clause (ii) of this paragraph in the event of any transaction such as a merger of the Funds or a Fund into, or the consolidation of the Funds or a Fund with, another entity, the sale by the Funds or a Fund of all, or substantially all, of its assets to another entity, or the liquidation or dissolution of the Funds or a Fund and distribution of the Funds’ or such Fund’s assets, in each case where the Service Agent is retained to continue providing services to the Funds or such Fund (or its respective successor) on substantially the same terms as this Agreement.

 

  d. Termination of this Agreement with respect to any one particular Fund shall in no way affect the rights and duties under this Agreement with respect to the Funds or any other Fund.

 

  e. This Agreement may be amended at any time in writing by mutual agreement of the parties hereto.

 

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13. NOTICES

Any notice, instruction or other instrument required to be given hereunder will be in writing and may be sent by hand, or by facsimile transmission, or overnight delivery by any recognized delivery service, to the parties at the following address or such other address as may be notified by any party from time to time:

If to the Fund:

ALLIANCEBERNSTEIN L.P.

1 N. Lexington Avenue

White Plains, NY 10601

18th Floor

Attention:  Juliana DeVincenzo

Telephone No.:  914-259-7722

If to the Service Agent:

STATE STREET BANK AND TRUST COMPANY

100 Summer Street, Floor 5

Boston, MA 02206

Attention:  James Meagher, Managing Director

State Street Alternative Investment Solutions

Facsimile No.:  212-651-2393

Telephone No.:  617-662-7310

with a copy to:

STATE STREET BANK AND TRUST COMPANY

Legal Division – Global Services Americas

One Lincoln Street

Boston, MA 02110

Attention:  Senior Vice President and Senior Managing Counsel

 

14. NON-ASSIGNABILITY

This Agreement shall not be assigned by either party hereto without the prior consent in writing of the other party, except that the Service Agent may assign this Agreement to a successor of all or a substantial portion of its business, or to a party controlling, controlled by or under common control with the Service Agent.

 

15. SUCCESSORS

This Agreement shall be binding on and shall inure to the benefit of the Funds and the Service Agent and their respective successors and permitted assigns.

 

16. ENTIRE AGREEMENT

This Agreement contains the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes all previous representations, warranties or commitments regarding the services to be performed hereunder whether oral or in writing.

 

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17. WAIVER

The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver nor shall it deprive such party of the right thereafter to insist upon strict adherence to that term or any term of this Agreement. Any waiver must be in writing signed by the waiving party.

 

18. SEVERABILITY

If any provision of this Agreement is invalid or unenforceable, the balance of the Agreement shall remain in effect, and if any provision is inapplicable to any person or circumstance it shall nevertheless remain applicable to all other persons and circumstances.

 

19. GOVERNING LAW

This Agreement shall be construed and the provisions thereof interpreted under and in accordance with the laws of The Commonwealth of Massachusetts.

 

20. REPRODUCTION OF DOCUMENTS

This Agreement and all schedules, exhibits, attachments and amendments hereto may be reproduced by any photographic, xerographic, photostatic, microfilm, micro-card, miniature photographic or other similar process. The parties hereto all/each agree that any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding, whether or not the original is in existence and whether or not such reproduction was made by a party in the regular course of business, and that any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence.

 

21. COUNTERPARTS

This Agreement may be executed by the parties hereto on any number of counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.

 

22. EMPLOYMENT OF OTHERS

The Service Agent may employ, engage, associate or contract with such person or persons, including, without limitation, affiliates and subsidiaries of the Service, as the Service Agent may deem desirable to assist it in performing its duties under this Agreement without the consent of the Funds; provided, however, that the compensation of such person or persons shall be paid by the Service Agent and that the Service Agent shall be as fully responsible to each Fund for the acts and omissions of any such person or persons as it is for its own acts and omissions under this Agreement.

[Remainder of page intentionally left blank]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their officers designated below as of the date first written above.

 

EACH FUND SET FORTH ON SCHEDULE A ATTACHED HERETO, SEVERALLY AND NOT JOINTLY
By:   /s/ Wesley Raper
Name:   Wesley Raper
Title:   Chief Financial Officer and Treasurer

 

STATE STREET BANK AND TRUST COMPANY
By:   /s/ Andrew Erickson
Name:   Andrew Erickson
Title:   Executive Vice President
EX-99.10.2 3 d460253dex99102.htm CUSTODIAN AGREEMENT Custodian Agreement

Exhibit 10.2

CUSTODIAN AGREEMENT

This Agreement dated as of September 29, 2017, is between AB PRIVATE CREDIT INVESTORS CORPORATION, a corporation organized and existing under the laws of the State of Maryland (the “Fund”), and STATE STREET BANK and TRUST COMPANY, a Massachusetts trust company (the “Custodian”).

WITNESSETH: that in consideration of the mutual covenants and agreements hereinafter contained, the parties hereto agree as follows:

SECTION 1.  EMPLOYMENT OF CUSTODIAN AND PROPERTY TO BE HELD BY IT.

The Fund hereby employs the Custodian as the custodian of its assets, including securities (including stocks, shares, bonds, debentures, notes, mortgages or other obligations and any certificates, receipts, warrants or other instruments representing rights to receive, purchase, or subscribe for the same, or evidencing or representing any other rights or interests therein, or in any property or assets) which the Fund desires to be held in places within the United States (“domestic securities”) and securities it desires to be held outside the United States (“foreign securities”). The Fund agrees to deliver to the Custodian all securities and cash owned by it, and all payments of income, payments of principal or capital distributions received by it with respect to all securities owned by it from time to time, and the cash consideration received by it for such new or treasury shares of beneficial interest of the Fund (“Shares”) as may be issued or sold from time to time. The Custodian shall not be responsible for any property of the Fund which is not received by it or which is delivered out in accordance with Proper Instructions (as such term is defined in Section 7 hereof) including, without limitation, Fund property (i) held by brokers, private bankers or other entities on behalf of the Fund (each a “Local Agent”), (ii) held by Special Sub-Custodians (as such term is defined in Section 5 hereof), (iii) held by entities which have advanced monies to or on behalf of the Fund and which have received Fund property as security for such advance(s) (each a “Pledgee”), or (iv) delivered or otherwise removed from the custody of the Custodian (a) in connection with any Free Trade (as such term is defined in Sections 2.2(14) and 2.6(7) hereof) or (b) pursuant to Special Instructions (as such term is defined in Section 7 hereof). With respect to uncertificated shares (the “Underlying Shares”) of registered “investment companies” (as defined in Section 3(a)(1) of the Investment Company Act of 1940, as amended from time to time (the “1940 Act”)), whether in the same “group of investment companies” (as defined in Section 12(d)(1)(G)(ii) of the 1940 Act) or otherwise, including pursuant to Section 12(d)(1)(F) of the 1940 Act (hereinafter sometimes referred to as the “Underlying Portfolios”) the holding of confirmation statements that identify the shares as being recorded in the Custodian’s name on behalf of the Fund will be deemed custody for purposes hereof.

Each Fund and the Custodian agree that the securities and other assets, other than cash, held on behalf of the Fund are “financial assets” within the meaning of Section 8-102(a) of the Uniform Commercial Code as in effect in Massachusetts (the “UCC”) that the Custodian is holding in a “securities account” within the meaning of Section 8-501 of the UCC. Other than Identified Securities (as defined below), the Custodian is holding such securities and other assets, other than cash, as a “securities intermediary” within the meaning of Section 8-102(a) of the UCC. The parties hereto acknowledge that no security entitlement shall exist with respect to any cash or to any financial asset held in any account which is registered in the name of the Fund, payable to the order


of the Fund or specially indorsed to the Fund or any third party (each such asset an “Identified Security”), except to the extent such Identified Security has been specially indorsed by the Fund to the Custodian or in blank.

The Fund hereby acknowledges that any securities or other assets issued outside the United States (“Foreign Security System Assets”) which may be held by the Custodian, a sub-custodian within the Custodian’s network of sub-custodians or a depository or book-entry system for the central handling of securities and other financial assets in which the Custodian or the sub-custodian are participants may not permit the Fund to have a security entitlement under the UCC from the Custodian with respect to such Foreign Security System Assets. If the Fund does not have a security entitlement from the Custodian, such securities or other assets shall not be a financial asset. The Fund hereby further acknowledges that the Custodian gives no assurance that a security entitlement is created under the UCC with respect to the Fund’s assets held in Euroclear or Cedelbank or their successors.

Upon receipt of Proper Instructions, the Custodian shall on behalf of the Fund from time to time employ one or more sub-custodians located in the United States, but only in accordance with a vote by the Board of Directors of the Fund (the “Board”), and provided that the Custodian shall have no more or less responsibility or liability to any Fund on account of any actions or omissions of any sub-custodian so employed than any such sub-custodian has to the Custodian. The Custodian may place and maintain each Fund’s foreign securities with foreign banking institution sub-custodians employed by the Custodian and/or foreign securities depositories, all as designated in Schedules A and B hereto, but only in accordance with the applicable provisions of Sections 3 and 4 hereof.

SECTION 2.  DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE FUND TO BE HELD IN THE UNITED STATES.

SECTION 2.1  HOLDING SECURITIES. The Custodian shall hold and physically segregate for the account of the Fund all non-cash property, to be held by it in the United States, including all domestic securities owned by the Fund other than (a) securities which are maintained pursuant to Section 2.8 in a clearing agency which acts as a securities depository or in a book-entry system authorized by the U.S. Department of the Treasury (each, a “U.S. Securities System”) and (b) Underlying Shares owned by the Fund which are maintained pursuant to Section 2.10 hereof in an account with State Street Bank and Trust Company or such other entity which may from time to time act as a transfer agent for the Underlying Portfolios and with respect to which the Custodian is provided with Proper Instructions (the “Underlying Transfer Agent”).

 

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SECTION 2.2  DELIVERY OF SECURITIES. The Custodian shall release and deliver domestic securities owned by the Fund held by the Custodian, in a U.S. Securities System account of the Custodian or in an account at the Underlying Transfer Agent, only upon receipt of Proper Instructions, which may be continuing instructions when deemed appropriate by the parties, and only in the following cases:

 

  1) Upon sale of such securities for the account of the Fund and receipt of payment therefor;

 

  2) Upon the receipt of payment in connection with any repurchase agreement related to such securities entered into by the Fund;

 

  3) In the case of a sale effected through a U.S. Securities System, in accordance with the provisions of Section 2.8 hereof;

 

  4) To the depository agent in connection with tender or other similar offers for securities of the Fund;

 

  5) To the issuer thereof or its agent when such securities are called, redeemed, retired or otherwise become payable; provided that, in any such case, the cash or other consideration is to be delivered to the Custodian;

 

  6) To the issuer thereof, or its agent, (a) for transfer into the name of the Fund or into the name of any nominee or nominees of the Custodian or into the name or nominee name of any agent appointed pursuant to Section 2.7 or into the name or nominee name of any sub-custodian appointed pursuant to Section 1 or (b) for exchange for a different number of bonds, certificates or other evidence representing the same aggregate face amount or number of units; provided that, in any such case, the new securities are to be delivered to the Custodian;

 

  7) Upon the sale of such securities for the account of the Fund, to the broker or its clearing agent, against a receipt, for examination in accordance with “street delivery” custom; provided that in any such case, the Custodian shall have no responsibility or liability for any loss arising from the delivery of such securities prior to receiving payment for such securities except as may arise from the Custodian’s own negligence or willful misconduct;

 

  8) For exchange or conversion pursuant to any plan of merger, consolidation, recapitalization, reorganization or readjustment of the securities of the issuer of such securities, or pursuant to provisions for conversion contained in such securities, or pursuant to any deposit agreement; provided that, in any such case, the new securities and cash, if any, are to be delivered to the Custodian;

 

  9) In the case of warrants, rights or similar securities, the surrender thereof in the exercise of such warrants, rights or similar securities or the surrender of interim receipts or temporary securities for definitive securities; provided that, in any such case, the new securities and cash, if any, are to be delivered to the Custodian;

 

  10)

For delivery in connection with any loans of securities made by the Fund (a) against receipt of collateral as agreed from time to time by the Fund, which may be in the

 

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  form of cash or obligations issued by the United States government, its agencies or instrumentalities, except that in connection with any loans for which collateral is to be credited to the Custodian’s account in the book-entry system authorized by the U.S. Department of the Treasury, the Custodian will not be held liable or responsible for the delivery of securities owned by the Fund prior to the receipt of such collateral or (b) to a lending agent, or such lending agent’s custodian, in accordance with written Proper Instructions (which need not provide for the receipt by the Custodian of collateral therefor) agreed upon from time to time by the Custodian and the Fund;

 

  11) For delivery as security in connection with any borrowing by the Fund requiring a pledge of assets by the Fund against receipt of amounts borrowed;

 

  12) For delivery in accordance with the provisions of any agreement among the Fund, the Custodian and a broker-dealer registered under the Securities Exchange Act of 1934 (the “Exchange Act”) and a member of the Financial Industry Regulatory Authority, Inc. (“FINRA”, formerly known as The National Association of Securities Dealers, Inc.), relating to compliance with the rules of The Options Clearing Corporation and of any registered national securities exchange, or of any similar organization or organizations, regarding escrow or other arrangements in connection with transactions by the Fund;

 

  13) For delivery in accordance with the provisions of any agreement among the Fund, the Custodian, and a futures commission merchant registered under the Commodity Exchange Act, relating to compliance with the rules of the Commodity Futures Trading Commission (the “CFTC”) and/or any contract market, or any similar organization or organizations, regarding account deposits in connection with transactions by the Fund;

 

  14) Upon the sale or other delivery of such investments (including, without limitation, to one or more (a) Special Sub-Custodians or (b) additional custodians appointed by the Fund, and communicated to the Custodian from time to time via a writing duly executed by an authorized officer of the Fund, for the purpose of engaging in repurchase agreement transactions(s), each a “Repo Custodian”), and prior to receipt of payment therefor, as set forth in written Proper Instructions (such delivery in advance of payment, along with payment in advance of delivery made in accordance with Section 2.6(7), as applicable, shall each be referred to herein as a “Free Trade”), provided that such Proper Instructions shall set forth (a) the securities of the Fund to be delivered and (b) the person(s) to whom delivery of such securities shall be made;

 

  15)

Upon receipt of instructions from the Fund’s transfer agent (the “Transfer Agent”) for delivery to such Transfer Agent or to the holders of Shares in connection with

 

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  distributions in kind, as may be described from time to time in the currently effective prospectus and statement of additional information of the Fund (the “Prospectus”), in satisfaction of requests by holders of Shares for repurchase or redemption;

 

  16) In the case of a sale processed through the Underlying Transfer Agent of Underlying Shares, in accordance with Section 2.10 hereof;

 

  17) For delivery as initial or variation margin in connection with futures or options on futures contracts entered into by the Fund; and

 

  18) For any other purpose, but only upon receipt of Proper Instructions from the Fund specifying (a) the securities of the Fund to be delivered and (b) the person or persons to whom delivery of such securities shall be made.

SECTION 2.3  REGISTRATION OF SECURITIES. Domestic securities held by the Custodian (other than bearer securities) shall be registered in the name of the Fund or in the name of any nominee of the Fund or of any nominee of the Custodian which nominee shall be assigned exclusively to the Fund, unless the Fund has authorized in writing the appointment of a nominee to be used in common with other registered management investment companies having the same investment adviser as the Fund, or in the name or nominee name of any agent appointed pursuant to Section 2.7 or in the name or nominee name of any sub-custodian appointed pursuant to Section 1. All securities accepted by the Custodian on behalf of the Fund under the terms of this Agreement shall be in “street name” or other good delivery form. If, however, the Fund directs the Custodian to maintain securities in “street name”, the Custodian shall utilize its best efforts only to timely collect income due the Fund on such securities and to notify the Fund on a best efforts basis only of relevant corporate actions including, without limitation, pendency of calls, maturities, tender or exchange offers.

SECTION 2.4  BANK ACCOUNTS. The Custodian shall open and maintain a separate bank account or accounts in the United States in the name of the Fund, subject only to draft or order by the Custodian acting pursuant to the terms of this Agreement, and shall hold in such account or accounts, subject to the provisions hereof, all cash received by it from or for the account of the Fund, other than cash maintained by the Fund in a bank account established and used in accordance with Rule 17f-3 under the 1940 Act. Funds held by the Custodian may be deposited by it to its credit as Custodian in the banking department of the Custodian or in such other banks or trust companies as it may in its discretion deem necessary or desirable; provided, however, that every such bank or trust company shall be qualified to act as a custodian under the 1940 Act and that each such bank or trust company and the funds to be deposited with each such bank or trust company shall be approved by vote of a majority of the Board. Such funds shall be deposited by the Custodian in its capacity as Custodian and shall be withdrawable by the Custodian only in that capacity.

SECTION 2.5  COLLECTION OF INCOME. Except with respect to Fund property released and delivered pursuant to Section 2.2(14) or purchased pursuant to Section 2.6(7), and subject to the provisions of Section 2.3, the Custodian shall collect on a timely basis all income and other

 

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payments with respect to registered domestic securities held hereunder to which the Fund shall be entitled either by law or pursuant to custom in the securities business, and shall collect on a timely basis all income and other payments with respect to bearer domestic securities if, on the date of payment by the issuer, such securities are held by the Custodian or its agent thereof and shall credit such income, as collected, to the Fund’s custodian account. Without limiting the generality of the foregoing, the Custodian shall detach and present for payment all coupons and other income items requiring presentation as and when they become due and shall collect interest when due on securities held hereunder. Income due the Fund on securities loaned pursuant to the provisions of Section 2.2 (10) shall be the responsibility of the Fund. The Custodian will have no duty or responsibility in connection therewith, other than to provide the Fund with such information or data as may be necessary to assist the Fund in arranging for the timely delivery to the Custodian of the income to which the Fund is properly entitled.

SECTION 2.6  PAYMENT OF FUND MONIES. Upon receipt of Proper Instructions, which may be continuing instructions when deemed appropriate by the parties, the Custodian shall pay out monies of the Fund in the following cases only:

 

  1) Upon the purchase of domestic securities, options, futures contracts or options on futures contracts for the account of the Fund but only (a) against the delivery of such securities or evidence of title to such options, futures contracts or options on futures contracts to the Custodian (or any bank, banking firm or trust company doing business in the United States or abroad which is qualified under the 1940 Act to act as a custodian and has been designated by the Custodian as its agent for this purpose) registered in the name of the Fund or in the name of a nominee of the Custodian referred to in Section 2.3 hereof or in proper form for transfer; (b) in the case of a purchase effected through a U.S. Securities System, in accordance with the conditions set forth in Section 2.8 hereof; (c) in the case of a purchase of Underlying Shares, in accordance with the conditions set forth in Section 2.10 hereof; (d) in the case of repurchase agreements entered into between the Fund and the Custodian, or another bank, or a broker-dealer which is a member of FINRA, (i) against delivery of the securities either in certificate form or through an entry crediting the Custodian’s account at the Federal Reserve Bank with such securities or (ii) against delivery of the receipt evidencing purchase by the Fund of securities owned by the Custodian along with written evidence of the agreement by the Custodian to repurchase such securities from the Fund; or (e) for transfer to a time deposit account of the Fund in any bank, whether domestic or foreign; such transfer may be effected prior to receipt of a confirmation from a broker and/or the applicable bank pursuant to Proper Instructions from the Fund as defined herein;

 

  2) In connection with conversion, exchange or surrender of securities owned by the Fund as set forth in Section 2.2 hereof;

 

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  3) For the redemption or repurchase of Shares issued as set forth in Section 6 hereof;

 

  4) For the payment of any expense or liability incurred by the Fund, including but not limited to the following payments for the account of the Fund: interest, taxes, management, accounting, transfer agent and legal fees, and operating expenses of the Fund whether or not such expenses are to be in whole or part capitalized or treated as deferred expenses;

 

  5) For the payment of any dividends on Shares declared pursuant to the Fund’s articles of incorporation or organization and by-laws and Prospectus (collectively, “Governing Documents”);

 

  6) For payment of the amount of dividends received in respect of securities sold short;

 

  7) Upon the purchase of domestic investments including, without limitation, repurchase agreement transactions involving delivery of Fund monies to Repo Custodian(s), and prior to receipt of such investments, as set forth in written Proper Instructions (such payment in advance of delivery, along with delivery in advance of payment made in accordance with Section 2.2(14), as applicable, shall each be referred to herein as a “Free Trade”), provided that such Proper Instructions shall also set forth (a) the amount of such payment and (b) the person(s) to whom such payment is made;

 

  8) For the fulfillment of the Fund’s obligations with respect to unfunded commitments incurred in connection with Loans (as such term is defined in the Loan Services Addendum attached hereto);

 

  9) For payment as initial or variation margin in connection with futures or options on futures contracts entered into by the Fund; and

 

  10) For any other purpose, but only upon receipt of Proper Instructions from the Fund specifying (a) the amount of such payment and (b) the person or persons to whom such payment is to be made.

SECTION 2.7  APPOINTMENT OF AGENTS. The Custodian may at any time or times in its discretion appoint (and may at any time remove) any other bank or trust company which is itself qualified under the 1940 Act to act as a custodian, as its agent to carry out such of the provisions of this Section 2 as the Custodian may from time to time direct; provided, however, that the appointment of any agent shall not relieve the Custodian of its responsibilities or liabilities hereunder. The Underlying Transfer Agent shall not be deemed an agent or sub-custodian of the Custodian for purposes of this Section 2.7 or any other provision of this Agreement.

SECTION 2.8  DEPOSIT OF FUND ASSETS IN U.S. SECURITIES SYSTEMS. The Custodian may deposit and/or maintain or permit any agent to deposit and/or maintain securities owned by the Fund in a U.S. Securities System in compliance with the conditions of Rule 17f-4 under the 1940 Act, as amended from time to time.

 

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SECTION 2.9  SEGREGATED ACCOUNT. The Custodian shall upon receipt of Proper Instructions, establish and maintain a segregated account or accounts for and on behalf of the Fund, into which account or accounts may be transferred cash and/or securities, including securities maintained in an account by the Custodian pursuant to Section 2.8 hereof, (a) in accordance with the provisions of any agreement among the Fund, the Custodian and a broker-dealer registered under the Exchange Act and a member of FINRA (or any futures commission merchant registered under the Commodity Exchange Act), relating to compliance with the rules of The Options Clearing Corporation and of any registered national securities exchange (or the CFTC or any registered contract market), or of any similar organization or organizations, regarding escrow or other arrangements in connection with transactions by the Fund, (b) for purposes of segregating cash or government securities in connection with options purchased, sold or written by the Fund or commodity futures contracts or options thereon purchased or sold by the Fund, (c) for the purposes of compliance by the Fund with the procedures required by Investment Company Act Release No. 10666, or any subsequent release of the U.S. Securities and Exchange Commission (the “SEC”), or interpretative opinion of the staff of the SEC, relating to the maintenance of segregated accounts by registered management investment companies, and (d) for any other purpose in accordance with Proper Instructions.

SECTION 2.10  DEPOSIT OF FUND ASSETS WITH THE UNDERLYING TRANSFER AGENT. Underlying Shares beneficially owned by the Fund shall be deposited and/or maintained in an account or accounts maintained with an Underlying Transfer Agent and the Custodian’s only responsibilities with respect thereto shall be limited to the following:

 

  1) Upon receipt of a confirmation or statement from an Underlying Transfer Agent that such Underlying Transfer Agent is holding or maintaining Underlying Shares in the name of the Custodian (or a nominee of the Custodian) for the benefit of the Fund, the Custodian shall identify by book-entry that such Underlying Shares are being held by it as custodian for the benefit of the Fund.

 

  2) In respect of the purchase of Underlying Shares for the account of the Fund, upon receipt of Proper Instructions, the Custodian shall pay out monies of the Fund as so directed, and record such payment from the account of the Fund on the Custodian’s books and records.

 

  3) In respect of the sale or redemption of Underlying Shares for the account of the Fund, upon receipt of Proper Instructions, the Custodian shall transfer such Underlying Shares as so directed, record such transfer from the account of the Fund on the Custodian’s books and records and, upon the Custodian’s receipt of the proceeds therefor, record such payment for the account of the Fund on the Custodian’s books and records.

 

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The Custodian shall not be liable to the Fund for any loss or damage to the Fund resulting from the maintenance of Underlying Shares with an Underlying Transfer Agent except for losses resulting directly from the fraud, negligence or willful misconduct of the Custodian or any of its agents or of any of its or their employees.

SECTION 2.11  OWNERSHIP CERTIFICATES FOR TAX PURPOSES. The Custodian shall execute ownership and other certificates and affidavits for all federal and state tax purposes in connection with receipt of income or other payments with respect to domestic securities of the Fund held by it and in connection with transfers of securities.

SECTION 2.12  PROXIES. Except with respect to Fund property released and delivered pursuant to Section 2.2(14), or purchased pursuant to Section 2.6(7), the Custodian shall, with respect to the domestic securities held hereunder, cause to be promptly executed by the registered holder of such securities, if the securities are registered otherwise than in the name of the Fund or a nominee of the Fund, all proxies, without indication of the manner in which such proxies are to be voted, and shall promptly deliver to the Fund such proxies, all proxy soliciting materials and all notices relating to such securities. Neither Custodian nor any nominee of Custodian shall vote any of the securities held hereunder by or for the account of the Fund, except in accordance with the instructions contained in an officers’ certificate.

SECTION 2.13  COMMUNICATIONS RELATING TO FUND SECURITIES. Except with respect to Fund property released and delivered pursuant to Section 2.2(14), or purchased pursuant to Section 2.6(7), and subject to the provisions of Section 2.3, the Custodian shall transmit promptly to the Fund all written information (including, without limitation, pendency of calls and maturities of domestic securities and expirations of rights in connection therewith and notices of exercise of call and put options written by the Fund and the maturity of futures contracts purchased or sold by the Fund) received by the Custodian from issuers of the securities being held for the Fund. With respect to tender or exchange offers, the Custodian shall transmit promptly to the Fund all written information received by the Custodian from issuers of the securities whose tender or exchange is sought and from the party (or its agents) making the tender or exchange offer. The Custodian shall not be liable for any untimely exercise of any tender, exchange or other right or power in connection with domestic securities or other property of the Fund at any time held by it unless (i) the Custodian is in actual possession of such domestic securities or property and (ii) the Custodian receives Proper Instructions with regard to the exercise of any such right or power, and both (i) and (ii) occur at least three business days prior to the date on which the Custodian is to take action to exercise such right or power. The Custodian shall also transmit promptly to the Fund all written information received by the Custodian regarding any class action or other litigation in connection with Fund securities or other assets issued in the United States and then held, or previously held, during the term of this Agreement by the Custodian for the account of the Fund, including, but not limited to, opt-out notices and proof-of-claim forms. For avoidance of doubt, upon and after the effective date of any termination of this Agreement the Custodian shall have no responsibility to so transmit any information under this Section 2.13.

 

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SECTION 2.14  FOREIGN EXCHANGE.

(1)    Upon receipt of Proper Instructions, which for purposes of this paragraph may also include security trade advices, the Custodian shall facilitate the processing and settlement of foreign exchange transactions. Such foreign exchange transactions do not constitute part of the services provided by the Custodian under this Agreement.

(2)    The Fund (or its investment manager acting on its behalf) may elect to enter into and execute foreign exchange transactions with third parties that are not affiliated with the Custodian, with State Street Global Markets, which is the foreign exchange division of State Street Bank and Trust Company and its affiliated companies (“SSGM”), or with a subcustodian. Where the Fund or its investment manager gives Proper Instructions for the execution of a foreign exchange transaction using an indirect foreign exchange service described in the Customer Publications, the Fund (or its investment manager) hereby instructs the Custodian, on behalf of the Fund, to direct the execution of such foreign exchange transaction to SSGM or, when the relevant currency is not traded by SSGM, to the applicable subcustodian. The Custodian shall not have any agency (except as contemplated in preceding sentence), trust or fiduciary obligation to the Fund, its investment manager or any other Person in connection with the execution of any foreign exchange transaction. The Custodian shall have no responsibility under this Agreement for the selection of the counterparty to, or the method of execution of, any foreign exchange transaction entered into by the Fund (or its investment manager acting on its behalf) or the reasonableness of the execution rate on any such transaction.

(3)    The Fund acknowledges that in connection with all foreign exchange transactions entered into by the Fund (or its investment manager acting on its behalf) with SSGM or any subcustodian, SSGM and each such subcustodian:

(i)    shall be acting in a principal capacity and not as broker, agent or fiduciary to the Fund or its Investment Manager;

(ii)    shall seek to profit from such foreign exchange transactions, and are entitled to retain and not disclose any such profit to the Fund or its investment manager ; and

(iii)     shall enter into such foreign exchange transactions pursuant to the terms and conditions, including pricing or pricing methodology, (a) agreed with the Fund or its investment manager from time to time or (b) in the case of an indirect foreign exchange service (i) as established by SSGM and set forth in the Customer Publications with respect to the particular foreign exchange execution services selected by the Fund or the investment manager or (ii) as established by a subcustodian from time to time.

“Customer Publications” means the general client publications of State Street Bank and Trust Company available from time to time available to clients and their investment managers.

 

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The Custodian or its affiliates, including SSGM, may trade based upon information that is not available to, and may enter into transactions for its own account or the account of clients in the same or opposite direction to the transactions entered into with the Fund (or its investment manager acting on its behalf), and shall have no obligation under this Agreement to share such information with or consider the interests of their respective counterparties, including, where applicable, the Fund or the investment manager.

SECTION 3.  PROVISIONS RELATING TO RULES 17F-5 AND 17F-7.

SECTION 3.1.  DEFINITIONS. As used throughout this Agreement, the capitalized following terms shall have the indicated meanings:

Country Risk” means all factors reasonably related to the systemic risk of holding Foreign Assets in a particular country including, but not limited to, such country’s political environment, economic and financial infrastructure (including any Eligible Securities Depository operating in the country), prevailing or developing custody and settlement practices, and laws and regulations applicable to the safekeeping and recovery of Foreign Assets held in custody in that country.

Eligible Foreign Custodian” has the meaning set forth in section (a)(1) of Rule 17f-5, including a majority-owned direct or indirect subsidiary of a U.S. Bank (as defined in Rule 17f-5), a bank holding company meeting the requirements of an Eligible Foreign Custodian (as set forth in Rule 17f-5 or by other appropriate action of the SEC), or a foreign branch of a Bank (as defined in Section 2(a)(5) of the 1940 Act) meeting the requirements of a custodian under Section 17(f) of the 1940 Act; the term does not include any Eligible Securities Depository.

Eligible Securities Depository” has the meaning set forth in section (b)(1) of Rule 17f-7.

Foreign Assets” means the Fund’s investments (including foreign currencies) for which the primary market is outside the United States and such cash and cash equivalents as are reasonably necessary to effect the Fund’s transactions in such investments.

Foreign Custody Manager” has the meaning set forth in section (a)(3) of Rule 17f-5.

Rule 17f-5” means Rule 17f-5 promulgated under the 1940 Act.

Rule 17f-7” means Rule 17f-7 promulgated under the 1940 Act.

SECTION 3.2.  THE CUSTODIAN AS FOREIGN CUSTODY MANAGER.

3.2.1  DELEGATION TO THE CUSTODIAN AS FOREIGN CUSTODY MANAGER. The Fund, by resolution adopted by its Board, hereby delegates to the Custodian, subject to Section (b) of Rule

 

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17f-5, the responsibilities set forth in this Section 3.2 with respect to Foreign Assets of the Fund held outside the United States, and the Custodian hereby accepts such delegation as Foreign Custody Manager with respect to the Fund.

3.2.2  COUNTRIES COVERED. The Foreign Custody Manager shall be responsible for performing the delegated responsibilities defined below only with respect to the countries and custody arrangements for each such country listed on Schedule A to this Agreement, which list of countries may be amended from time to time by the Fund with the agreement of the Foreign Custody Manager. The Foreign Custody Manager shall list on Schedule A the Eligible Foreign Custodians selected by the Foreign Custody Manager to maintain the assets of the Fund, which list of Eligible Foreign Custodians may be amended from time to time in the sole discretion of the Foreign Custody Manager. The Foreign Custody Manager will provide amended versions of Schedule A in accordance with Section 3.2.5 hereof.

Upon the receipt by the Foreign Custody Manager of Proper Instructions to open an account or to place or maintain Foreign Assets in a country listed on Schedule A, and the fulfillment by the Fund of the applicable account opening requirements for such country, the Foreign Custody Manager shall be deemed to have been delegated by the Board responsibility as Foreign Custody Manager with respect to that country and to have accepted such delegation. Execution of this Agreement by the Fund shall be deemed to be a Proper Instruction to open an account, or to place or maintain Foreign Assets, in each country listed on Schedule A in which the Custodian has previously placed or currently maintains Foreign Assets pursuant to the terms of the Agreement. Following the receipt of Proper Instructions directing the Foreign Custody Manager to close the account of the Fund with the Eligible Foreign Custodian selected by the Foreign Custody Manager in a designated country, the delegation by the Board to the Custodian as Foreign Custody Manager for that country shall be deemed to have been withdrawn and the Custodian shall immediately cease to be the Foreign Custody Manager with respect to the Fund with respect to that country.

The Foreign Custody Manager may withdraw its acceptance of delegated responsibilities with respect to a designated country upon written notice to the Fund. Thirty days (or such longer period to which the parties agree in writing) after receipt of any such notice by the Fund, the Custodian shall have no further responsibility in its capacity as Foreign Custody Manager to the Fund with respect to the country as to which the Custodian’s acceptance of delegation is withdrawn.

3.2.3  SCOPE OF DELEGATED RESPONSIBILITIES:

(a)  SELECTION OF ELIGIBLE FOREIGN CUSTODIANS. Subject to the provisions of this Section 3.2, the Foreign Custody Manager may place and maintain the Foreign Assets in the care of the Eligible Foreign Custodian selected by the Foreign Custody Manager in each country listed on Schedule A, as amended from time to time. In performing its delegated responsibilities as Foreign Custody Manager to place or maintain Foreign Assets with an Eligible Foreign Custodian, the Foreign Custody Manager shall determine that the Foreign Assets will be subject to reasonable care,

 

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based on the standards applicable to custodians in the country in which the Foreign Assets will be held by that Eligible Foreign Custodian, after considering all factors relevant to the safekeeping of such assets, including, without limitation the factors specified in Rule 17f-5(c)(1).

(b)  CONTRACTS WITH ELIGIBLE FOREIGN CUSTODIANS. The Foreign Custody Manager shall determine that the contract governing the foreign custody arrangements with each Eligible Foreign Custodian selected by the Foreign Custody Manager will satisfy the requirements of Rule 17f-5(c)(2).

(c)  MONITORING. In each case in which the Foreign Custody Manager maintains Foreign Assets with an Eligible Foreign Custodian selected by the Foreign Custody Manager, the Foreign Custody Manager shall establish a system to monitor (i) the appropriateness of maintaining the Foreign Assets with such Eligible Foreign Custodian and (ii) performance of the contract governing the custody arrangements established by the Foreign Custody Manager with the Eligible Foreign Custodian. In the event the Foreign Custody Manager determines that the custody arrangements with an Eligible Foreign Custodian it has selected are no longer appropriate, the Foreign Custody Manager shall (i) notify the Board in accordance with Section 3.2.5 hereunder, and (ii) withdraw the Foreign Assets as directed by the Board or pursuant to Proper Instructions.

3.2.4  GUIDELINES FOR THE EXERCISE OF DELEGATED AUTHORITY. For purposes of this Section 3.2, the Board shall be deemed to have considered and determined to accept such Country Risk as is incurred by placing and maintaining the Foreign Assets in each country for which the Custodian is serving as Foreign Custody Manager of the Fund.

3.2.5  REPORTING REQUIREMENTS. The Foreign Custody Manager shall report the withdrawal of the Foreign Assets from an Eligible Foreign Custodian and the placement of such Foreign Assets with another Eligible Foreign Custodian by providing to the Board an amended Schedule A at the end of the calendar quarter in which an amendment to such Schedule has occurred. The Foreign Custody Manager shall make written reports notifying the Board of any other material change in the foreign custody arrangements of the Fund described in this Section 3.2 after the occurrence of the material change.

3.2.6  STANDARD OF CARE AS FOREIGN CUSTODY MANAGER OF THE FUND. In performing the responsibilities delegated to it, the Foreign Custody Manager agrees to exercise reasonable care, prudence and diligence such as a person having responsibility for the safekeeping of assets of management investment companies registered under the 1940 Act would exercise.

3.2.7  REPRESENTATIONS WITH RESPECT TO RULE 17F-5. The Foreign Custody Manager represents to the Fund that it is a U.S. Bank as defined in section (a)(7) of Rule 17f-5. The Fund represents to the Custodian that the Board has determined that it is reasonable for the Board to rely on the Custodian to perform the responsibilities delegated pursuant to this Agreement to the Custodian as the Foreign Custody Manager of the Fund.

 

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3.2.8  EFFECTIVE DATE AND TERMINATION OF THE CUSTODIAN AS FOREIGN CUSTODY MANAGER. The Board’s delegation to the Custodian as Foreign Custody Manager of the Fund shall be effective as of the date hereof and shall remain in effect until terminated at any time, without penalty, by written notice from the terminating party to the non-terminating party. Termination will become effective thirty (30) days after receipt by the non-terminating party of such notice. The provisions of Section 3.2.2 hereof shall govern the delegation to and termination of the Custodian as Foreign Custody Manager of the Fund with respect to designated countries.

SECTION 3.3  ELIGIBLE SECURITIES DEPOSITORIES.

3.3.1  ANALYSIS AND MONITORING. The Custodian shall (a) provide the Fund (or its duly-authorized investment manager or investment adviser) with an analysis of the custody risks associated with maintaining assets with the Eligible Securities Depositories set forth on Schedule B hereto, in accordance with section (a)(1)(i)(A) of Rule 17f-7, and (b) monitor such risks on a continuing basis, and promptly notify the Fund (or its duly-authorized investment manager or investment adviser) of any material change in such risks, in accordance with section (a)(1)(i)(B) of Rule 17f-7. If a custody arrangement with an Eligible Securities Depository no longer meets the requirements of this Section, the Fund’s Foreign Assets must, in accordance with Proper Instructions, be withdrawn from the depository as soon as reasonably practicable and the Custodian shall act in accordance with such Proper Instructions to withdraw such Foreign Assets.

3.3.2  STANDARD OF CARE. The Custodian agrees to exercise reasonable care, prudence and diligence in performing the duties set forth in Section 3.3.1.

SECTION 4.  DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE FUND TO BE HELD OUTSIDE THE UNITED STATES.

SECTION 4.1  DEFINITIONS. As used throughout this Agreement, the following capitalized terms shall have the indicated meanings:

Foreign Securities System” means an Eligible Securities Depository listed on Schedule B hereto.

Foreign Sub-Custodian” means a foreign banking institution serving as an Eligible Foreign Custodian.

SECTION 4.2.  HOLDING SECURITIES. The Custodian shall identify on its books as belonging to the Fund the foreign securities held by each Foreign Sub-Custodian or Foreign Securities System. The Custodian may hold foreign securities for all of its customers, including the Fund, with any Foreign Sub-Custodian in an account that is identified as belonging to the Custodian for the benefit of its customers, provided however, that (i) the records of the Custodian with respect to foreign securities of the Fund which are maintained in such account shall identify those securities as belonging to the Fund and (ii), to the extent permitted and customary in the market in which the

 

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account is maintained, the Custodian shall require that securities so held by the Foreign Sub-Custodian be held separately from any assets of such Foreign Sub-Custodian or of other customers of such Foreign Sub-Custodian.

SECTION 4.3.  FOREIGN SECURITIES SYSTEMS. Foreign securities shall be maintained in a Foreign Securities System in a designated country through arrangements implemented by the Custodian or a Foreign Sub-Custodian, as applicable, in such country.

SECTION 4.4.  TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT.

4.4.1.  DELIVERY OF FOREIGN SECURITIES. The Custodian or a Foreign Sub-Custodian shall release and deliver foreign securities of the Fund held by the Custodian or such Foreign Sub-Custodian, or in a Foreign Securities System account, only upon receipt of Proper Instructions, which may be continuing instructions when deemed appropriate by the parties, and only in the following cases:

 

  (i) Upon the sale of such foreign securities for the Fund in accordance with commercially reasonable market practice in the country where such foreign securities are held or traded, including, without limitation: (A) delivery against expectation of receiving later payment; or (B) in the case of a sale effected through a Foreign Securities System, in accordance with the rules governing the operation of the Foreign Securities System;

 

  (ii) In connection with any repurchase agreement related to foreign securities;

 

  (iii) To the depository agent in connection with tender or other similar offers for foreign securities of the Fund;

 

  (iv) To the issuer thereof or its agent when such foreign securities are called, redeemed, retired or otherwise become payable;

 

  (v) To the issuer thereof, or its agent, for transfer into the name of the Custodian (or the name of the respective Foreign Sub-Custodian or of any nominee of the Custodian or such Foreign Sub-Custodian) or for exchange for a different number of bonds, certificates or other evidence representing the same aggregate face amount or number of units;

 

  (vi) To brokers, clearing banks or other clearing agents for examination or trade execution in accordance with market custom; provided that in any such case, the Foreign Sub-Custodian shall have no responsibility or liability for any loss arising from the delivery of such foreign securities prior to receiving payment for such foreign securities except as may arise from the Foreign Sub-Custodian’s own negligence or willful misconduct;

 

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  (vii) For exchange or conversion pursuant to any plan of merger, consolidation, recapitalization, reorganization or readjustment of the securities of the issuer of such securities, or pursuant to provisions for conversion contained in such securities, or pursuant to any deposit agreement;

 

  (viii) In the case of warrants, rights or similar foreign securities, the surrender thereof in the exercise of such warrants, rights or similar securities or the surrender of interim receipts or temporary securities for definitive securities;

 

  (ix) For delivery as security in connection with any borrowing by the Fund requiring a pledge of assets by the Fund;

 

  (x) In connection with trading in options and futures contracts, including delivery as original margin and variation margin;

 

  (xi) Upon the sale or other delivery of such foreign securities (including, without limitation, to one or more Special Sub-Custodians or Repo Custodians) as a Free Trade, provided that applicable Proper Instructions shall set forth (A) the foreign securities to be delivered and (B) the person or persons to whom delivery shall be made;

 

  (xii) In connection with the lending of foreign securities; and

 

  (xiii) For any other purpose, but only upon receipt of Proper Instructions specifying (A) the foreign securities to be delivered and (B) the person or persons to whom delivery of such securities shall be made.

4.4.2.  PAYMENT OF FUND MONIES. Upon receipt of Proper Instructions, which may be continuing instructions when deemed appropriate by the parties, the Custodian shall pay out, or direct the respective Foreign Sub-Custodian or the respective Foreign Securities System to pay out, monies of the Fund in the following cases only:

 

  (i) Upon the purchase of foreign securities for the Fund, unless otherwise directed by Proper Instructions, by (A) delivering money to the seller thereof or to a dealer therefor (or an agent for such seller or dealer) against expectation of receiving later delivery of such foreign securities; or (B) in the case of a purchase effected through a Foreign Securities System, in accordance with the rules governing the operation of such Foreign Securities System;

 

  (ii) In connection with the conversion, exchange or surrender of foreign securities of the Fund;

 

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  (iii) For the payment of any expense or liability of the Fund, including but not limited to the following payments: interest, taxes, investment advisory fees, transfer agency fees, fees under this Agreement, legal fees, accounting fees, and other operating expenses;

 

  (iv) For the purchase or sale of foreign exchange or foreign exchange contracts for the Fund, including transactions executed with or through the Custodian or its Foreign Sub-Custodians;

 

  (v) In connection with trading in options and futures contracts, including delivery as original margin and variation margin;

 

  (vi) Upon the purchase of foreign investments including, without limitation, repurchase agreement transactions involving delivery of Fund monies to Repo Custodian(s), as a Free Trade, provided that applicable Proper Instructions shall set forth (A) the amount of such payment and (B) the person or persons to whom payment shall be made;

 

  (vii) For payment of part or all of the dividends received in respect of securities sold short;

 

  (viii) In connection with the borrowing or lending of foreign securities; and

 

  (ix) For any other purpose, but only upon receipt of Proper Instructions specifying (A) the amount of such payment and (B) the person or persons to whom such payment is to be made.

4.4.3.  MARKET CONDITIONS. Notwithstanding any provision of this Agreement to the contrary, settlement and payment for Foreign Assets received for the account of the Fund and delivery of Foreign Assets maintained for the account of the Fund may be effected in accordance with the customary established securities trading or processing practices and procedures in the country or market in which the transaction occurs, including, without limitation, delivering Foreign Assets to the purchaser thereof or to a dealer therefor (or an agent for such purchaser or dealer) with the expectation of receiving later payment for such Foreign Assets from such purchaser or dealer.

The Custodian shall provide to the Board the information with respect to custody and settlement practices in countries in which the Custodian employs a Foreign Sub-Custodian described on Schedule C hereto at the time or times set forth on such Schedule. The Custodian may revise Schedule C from time to time, provided that no such revision shall result in the Board being provided with substantively less information than had been previously provided hereunder.

SECTION 4.5.  REGISTRATION OF FOREIGN SECURITIES. The foreign securities maintained in the custody of a Foreign Sub-Custodian (other than bearer securities) shall be registered in the name of the Fund or in the name of the Custodian or in the name of any Foreign Sub-Custodian or in the

 

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name of any nominee of the foregoing, and the Fund agrees to hold any such nominee harmless from any liability as a holder of record of such foreign securities. The Custodian or a Foreign Sub-Custodian shall not be obligated to accept securities on behalf of the Fund under the terms of this Agreement unless the form of such securities and the manner in which they are delivered are in accordance with reasonable market practice.

SECTION 4.6  BANK ACCOUNTS. The Custodian shall identify on its books as belonging to the Fund cash (including cash denominated in foreign currencies) deposited with the Custodian. Where the Custodian is unable to maintain, or market practice does not facilitate the maintenance of, cash on the books of the Custodian, a bank account or bank accounts shall be opened and maintained outside the United States on behalf of the Fund with a Foreign Sub-Custodian. All accounts referred to in this Section shall be subject only to draft or order by the Custodian (or, if applicable, such Foreign Sub-Custodian) acting pursuant to the terms of this Agreement to hold cash received by or from or for the account of the Fund. Cash maintained on the books of the Custodian (including its branches, subsidiaries and affiliates), regardless of currency denomination, is maintained in bank accounts established under, and subject to the laws of, The Commonwealth of Massachusetts.

SECTION 4.7.  COLLECTION OF INCOME. The Custodian shall use reasonable commercial efforts to collect all income and other payments with respect to the Foreign Assets held hereunder to which the Fund shall be entitled and shall credit such income, as collected, to the Fund. In the event that extraordinary measures are required to collect such income, the Fund and the Custodian shall consult as to such measures and as to the compensation and expenses of the Custodian relating to such measures.

SECTION 4.8  SHAREHOLDER RIGHTS. With respect to the foreign securities held pursuant to this Section 4, the Custodian shall use reasonable commercial efforts to facilitate the exercise of voting and other shareholder rights, subject always to the laws, regulations and practical constraints that may exist in the country where such securities are issued. The Fund acknowledges that local conditions, including lack of regulation, onerous procedural obligations, lack of notice and other factors may have the effect of severely limiting the ability of the Fund to exercise shareholder rights.

SECTION 4.9.  COMMUNICATIONS RELATING TO FOREIGN SECURITIES. The Custodian shall transmit promptly to the Fund written information with respect to materials received by the Custodian via the Foreign Sub-Custodians from issuers of the foreign securities being held for the account of the Fund (including, without limitation, pendency of calls and maturities of foreign securities and expirations of rights in connection therewith). With respect to tender or exchange offers, the Custodian shall transmit promptly to the Fund written information with respect to materials so received by the Custodian from issuers of the foreign securities whose tender or exchange is sought or from the party (or its agents) making the tender or exchange offer. The Custodian shall not be liable for any untimely exercise of any tender, exchange or other right or power in connection with foreign securities or other property of the Fund at any time held by it unless (i) the Custodian or the respective Foreign Sub-Custodian is in actual possession of such

 

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foreign securities or property and (ii) the Custodian receives Proper Instructions with regard to the exercise of any such right or power, and both (i) and (ii) occur at least three business days prior to the date on which the Custodian is to take action to exercise such right or power. The Custodian shall also transmit promptly to the Fund all written information received by the Custodian via the Foreign Sub-Custodians from issuers of the foreign securities being held for the account of the Fund regarding any class action or other litigation in connection with Fund foreign securities or other assets issued outside the United States and then held, or previously held, during the term of this Agreement by the Custodian via a Foreign Sub-Custodian for the account of the Fund, including, but not limited to, opt-out notices and proof-of-claim forms. For avoidance of doubt, upon and after the effective date of any termination of this Agreement, the Custodian shall have no responsibility to so transmit any information under this Section 4.9.

SECTION 4.10.  LIABILITY OF FOREIGN SUB-CUSTODIANS. Each agreement pursuant to which the Custodian employs a Foreign Sub-Custodian shall, to the extent possible, require the Foreign Sub-Custodian to exercise reasonable care in the performance of its duties, and to indemnify, and hold harmless, the Custodian from and against any loss, damage, cost, expense, liability or claim arising out of or in connection with the Foreign Sub-Custodian’s performance of such obligations. At the Fund’s election, it shall be entitled to be subrogated to the rights of the Custodian with respect to any claims against a Foreign Sub-Custodian as a consequence of any such loss, damage, cost, expense, liability or claim if and to the extent that the Fund has not been made whole for any such loss, damage, cost, expense, liability or claim.

SECTION 4.11  TAX LAW. The Custodian shall have no responsibility or liability for any obligations now or hereafter imposed on the Fund or the Custodian as custodian of the Fund by the tax law of the United States or of any state or political subdivision thereof. It shall be the responsibility of the Fund to notify the Custodian of the obligations imposed on the Fund or the Custodian as custodian of the Fund by the tax law of countries other than those mentioned in the above sentence, including responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting. The sole responsibility of the Custodian with regard to such tax law shall be to use reasonable efforts to assist the Fund with respect to any claim for exemption or refund under the tax law of countries for which the Fund has provided such information.

SECTION 4.12.  LIABILITY OF CUSTODIAN. The Custodian shall be liable for the acts or omissions of a Foreign Sub-Custodian to the same extent as set forth with respect to sub-custodians generally in this Agreement and, regardless of whether assets are maintained in the custody of a Foreign Sub-Custodian or a Foreign Securities System, the Custodian shall not be liable for any loss, damage, cost, expense, liability or claim resulting from nationalization, expropriation, currency restrictions, or acts of war or terrorism, or any other loss where the Sub-Custodian has otherwise acted with reasonable care.

 

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SECTION 5.  SPECIAL SUB-CUSTODIANS.

Upon receipt of Special Instructions (as such term is defined in Section 7 hereof), the Custodian shall, on behalf of the Fund, appoint one or more banks, trust companies or other entities designated in such Special Instructions to act as a sub-custodian for the purposes of effecting such transaction(s) as may be designated by the Fund in Special Instructions. Each such designated sub-custodian is referred to herein as a “Special Sub-Custodian.” Each such duly appointed Special Sub-Custodian shall be listed on Schedule D hereto, as it may be amended from time to time by the Fund, with the acknowledgment of the Custodian. In connection with the appointment of any Special Sub-Custodian, and in accordance with Special Instructions, the Custodian shall enter into a sub-custodian agreement with the Fund and the Special Sub-Custodian in form and substance approved by the Fund, provided that such agreement shall in all events comply with the provisions of the 1940 Act and the rules and regulations thereunder and the terms and provisions of this Agreement.

SECTION 6.  PAYMENTS FOR SALES OR REPURCHASES OR REDEMPTIONS OF SHARES.

The Custodian shall receive from the distributor of the Shares or from the Transfer Agent and deposit into the account of the Fund such payments as are received for Shares thereof issued or sold from time to time by the Fund. The Custodian will provide timely notification to the Fund and the Transfer Agent of any receipt by it of payments for Shares of the Fund.

From such funds as may be available for the purpose, the Custodian shall, upon receipt of instructions from the Transfer Agent, make funds available for payment to holders of Shares who have delivered to the Transfer Agent a request for redemption or repurchase of their Shares. In connection with the redemption or repurchase of Shares, the Custodian is authorized upon receipt of instructions from the Transfer Agent to wire funds to or through a commercial bank designated by the redeeming shareholders. In connection with the redemption or repurchase of Shares, the Custodian shall honor checks drawn on the Custodian by a holder of Shares, which checks have been furnished by the Fund to the holder of Shares, when presented to the Custodian in accordance with such procedures and controls as are mutually agreed upon from time to time between the Fund and the Custodian.

SECTION 7.  PROPER INSTRUCTIONS AND SPECIAL INSTRUCTIONS.

Proper Instructions,” which may also be standing instructions, as such term is used throughout this Agreement shall mean instructions received by the Custodian from the Fund, the Fund’s duly authorized investment manager or investment adviser, or a person or entity duly authorized by either of them. Such instructions may be in writing signed by the authorized person or persons or may be in a tested communication or in a communication utilizing access codes effected between electro-mechanical or electronic devices or may be by such other means and utilizing such intermediary systems and utilities as may be agreed from time to time by the Custodian and the person(s) or entity giving such instruction, provided that the Fund has followed any security procedures agreed to from time to time by the Fund and the Custodian including, but not limited to, the security procedures selected by the Fund via the form of Funds Transfer Addendum hereto, the terms of which are

 

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hereby agreed to. Oral instructions will be considered Proper Instructions if the Custodian reasonably believes them to have been given by a person authorized to provide such instructions with respect to the transaction involved; the Fund shall cause all oral instructions to be confirmed in writing. For purposes of this Section, Proper Instructions shall include instructions received by the Custodian pursuant to any multi-party agreement which requires a segregated asset account in accordance with Section 2.9 hereof. The Fund shall cause its duly authorized officer to certify to the Custodian in writing the names and specimen signatures of persons authorized to give Proper Instructions (“Authorized Persons”) in Schedule E attached hereto. The Custodian shall be entitled to rely upon the identity and authority of such persons until it receives notice from the Fund to the contrary.

Special Instructions,” as such term is used throughout this Agreement, means Proper Instructions countersigned or confirmed in writing by the Treasurer or any Assistant Treasurer of the Fund or any other person designated in writing by the Treasurer of the Fund, which countersignature or confirmation shall be (a) included on the same instrument containing the Proper Instructions or on a separate instrument clearly relating thereto and (b) delivered by hand, by facsimile transmission, or in such other manner as the Fund and the Custodian agree in writing.

Concurrently with the execution of this Agreement, and from time to time thereafter, as appropriate, the Fund shall deliver to the Custodian, duly certified by the Fund’s Treasurer or Assistant Treasurer, a certificate setting forth: (i) the names, titles, signatures and scope of authority of all persons authorized to give Proper Instructions or any other notice, request, direction, instruction, certificate or instrument on behalf of the Fund and (ii) the names, titles and signatures of those persons authorized to give Special Instructions. Such certificate may be accepted and relied upon by the Custodian as conclusive evidence of the facts set forth therein and shall be considered to be in full force and effect until receipt by the Custodian of a similar certificate to the contrary.

SECTION 8.  EVIDENCE OF AUTHORITY.

The Custodian shall be protected in acting upon any instructions, notice, request, consent, certificate or other instrument or paper believed by it to be genuine and to have been properly executed by or on behalf of the Fund. The Custodian may receive and accept a copy of a resolution certified by the Secretary or an Assistant Secretary of the Fund as conclusive evidence (a) of the authority of any person to act in accordance with such resolution or (b) of any determination or of any action by the Board as described in such resolution, and such resolution may be considered as in full force and effect until receipt by the Custodian of written notice to the contrary.

SECTION 9.  ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY.

The Custodian may in its discretion, without express authority from the Fund:

 

  1) Make payments to itself or others for minor expenses of handling securities or other similar items relating to its duties under this Agreement; provided that all such payments shall be accounted for to the Fund;

 

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  2) Surrender securities in temporary form for securities in definitive form;

 

  3) Endorse for collection, in the name of the Fund, checks, drafts and other negotiable instruments; and

 

  4) In general, attend to all non-discretionary details in connection with the sale, exchange, substitution, purchase, transfer and other dealings with the securities and property of the Fund except as otherwise directed by the Board.

SECTION 10.  RESERVED.

SECTION 11.  RECORDS.

The Custodian shall create and maintain all records relating to its activities and obligations under this Agreement in such manner as will meet the obligations of the Fund under the 1940 Act, with particular attention to section 31 thereof and Rules 31a-1 and 31a-2 thereunder. All such records shall be the property of the Fund and shall at all times during the regular business hours of the Custodian be open for inspection by duly authorized officers, employees or agents of the Fund and employees and agents of the SEC. The Custodian shall, at the Fund’s request, supply the Fund with a tabulation of securities owned by the Fund and held by the Custodian and shall, when requested to do so by the Fund and for such compensation as shall be agreed upon between the Fund and the Custodian, include certificate numbers in such tabulations. The Fund acknowledges that, in creating and maintaining the records as set forth herein with respect to the Fund property released and delivered pursuant to Section 2.2(14), or purchased pursuant to Section 2.6(7) hereof, the Custodian is authorized and instructed to rely upon information provided to it by the Fund, the Fund’s counterparty(ies), or the agents of either of them.

SECTION 12.  RESERVED.

SECTION 13.  REPORTS TO FUND BY INDEPENDENT PUBLIC ACCOUNTANTS.

The Custodian shall provide the Fund, at such times as the Fund may reasonably require, with reports by independent public accountants on the accounting system, internal accounting control and procedures for safeguarding securities, futures contracts and options on futures contracts, including securities deposited and/or maintained in a U.S. Securities System or a Foreign Securities System (either, a “Securities System”), relating to the services provided by the Custodian under this Agreement; such reports, shall be of sufficient scope and in sufficient detail, as may reasonably be required by the Fund to provide reasonable assurance that any material inadequacies would be disclosed by such examination, and, if there are no such inadequacies, the reports shall so state.

 

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SECTION 14.  COMPENSATION OF CUSTODIAN.

The Custodian shall be entitled to reasonable compensation for its services and expenses as Custodian, as agreed upon from time to time between the Fund and the Custodian.

SECTION 15.  RESPONSIBILITY OF CUSTODIAN.

So long as and to the extent that it is in the exercise of reasonable care, the Custodian shall not be responsible for the title, validity or genuineness of any property or evidence of title thereto received by it or delivered by it pursuant to this Agreement and shall be held harmless in acting upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed by the proper party or parties, including any futures commission merchant acting pursuant to the terms of a three-party futures or options agreement. The Custodian shall be held to the exercise of reasonable care in carrying out the provisions of this Agreement, but shall be kept indemnified by and shall be without liability to the Fund for any action taken or omitted by it in good faith without negligence, including, without limitation, acting in accordance with any Proper Instruction. It shall be entitled to rely on and may act upon advice of counsel (who may be counsel for the Fund) on all matters, and shall be without liability for any action reasonably taken or omitted pursuant to such advice. The Custodian shall be without liability to the Fund for any loss, liability, claim or expense resulting from or caused by anything that is part of Country Risk, including without limitation nationalization, expropriation, currency restrictions, insolvency of a Foreign Sub-custodian, acts of war, revolution, riots or terrorism.

Except as may arise from the Custodian’s own negligence or willful misconduct or the negligence or willful misconduct of a sub-custodian or agent, the Custodian shall be without liability to the Fund for any loss, liability, claim or expense resulting from or caused by; (i) events or circumstances beyond the reasonable control of the Custodian or any sub-custodian or Securities System or any agent or nominee of any of the foregoing, including, without limitation, the interruption, suspension or restriction of trading on or the closure of any securities market, power or other mechanical or technological failures or interruptions, computer viruses or communications disruptions, work stoppages, natural disasters, or other similar events or acts; (ii) errors by the Fund or its duly authorized investment manager or investment adviser in their instructions to the Custodian provided such instructions have been in accordance with this Agreement; (iii) the insolvency of or acts or omissions by a Securities System; (iv) any act or omission of a Special Sub-Custodian including, without limitation, reliance on reports prepared by a Special Sub-Custodian; (v) any delay or failure of any broker, agent or intermediary, central bank or other commercially prevalent payment or clearing system to deliver to the Custodian’s sub-custodian or agent securities purchased or in the remittance or payment made in connection with securities sold; (vi) any delay or failure of any company, corporation, or other body in charge of registering or transferring securities in the name of the Custodian, the Fund, the Custodian’s sub-custodians, nominees or agents or any consequential losses arising out of such delay or failure to transfer such securities including non-receipt of bonus, dividends and rights and other accretions or benefits; (vii) delays or inability to perform its duties due to any disorder in market infrastructure with respect to any particular security or Securities System; and (viii) any provision of any present or future law or regulation or order of the United

 

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States of America, or any state thereof, or any other country, or political subdivision thereof or of any court of competent jurisdiction. The Custodian shall be liable for the acts or omissions of a Foreign Sub-Custodian to the same extent as set forth with respect to sub-custodians generally in this Agreement.

If the Fund requires the Custodian to take any action with respect to securities, which action involves the payment of money or which action may, in the opinion of the Custodian, result in the Custodian or its nominee assigned to the Fund being liable for the payment of money or incurring liability of some other form, the Fund, as a prerequisite to requiring the Custodian to take such action, shall provide indemnity to the Custodian in an amount and form satisfactory to it.

If the Fund requires the Custodian, its affiliates, subsidiaries or agents, to advance cash or securities for any purpose (including but not limited to securities settlements, foreign exchange contracts and assumed settlement), or in the event that the Custodian or its nominee shall incur or be assessed any taxes, charges, expenses, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominee’s own negligent action, negligent failure to act or willful misconduct, or if the Fund fails to compensate the Custodian pursuant to Section 14 hereof, any property at any time held for the account of the Fund shall be security therefor and should the Fund fail to repay the Custodian promptly, the Custodian shall be entitled to utilize available cash and to dispose of the Fund’s assets to the extent necessary to obtain reimbursement.

Except as may arise from the Custodian’s own negligence or willful misconduct, the Fund shall indemnify and hold the Custodian harmless from and against any and all costs, expenses, losses, damages, charges, counsel fees, payments and liabilities which may be asserted against the Custodian (a) acting in accordance with any Proper Instruction or Special Instruction including, without limitation, any Proper Instruction with respect to Free Trades including, but not limited to, cost, expense, loss, damage, liability, tax, charge, assessment or claim resulting from (i) the failure of the Fund to receive income with respect to purchased investments, (ii) the failure of the Fund to recover amounts invested on maturity of purchased investments, (iii) the failure of the Custodian to respond to or be aware of notices or other corporate communications with respect to purchased investments, or (iv) the Custodian’s reliance upon information provided by the Fund, the Fund’s counterparty(ies) or the agents of either of them with respect to Fund property released, delivered or purchased pursuant to either of Section 2.2(14) or Section 2.6(7) hereof; (b) for the acts or omissions of any Special Sub-Custodian; or (c) for the acts or omissions of any Local Agent or Pledgee.

Notwithstanding anything to the contrary in this Agreement, each of the Fund and the Custodian hereby agrees that in no event shall either the Fund or the Custodian be liable to the other party for indirect, special or consequential damages, or for any damages of a similar nature, provided, however, that the foregoing shall in no way limit the Custodian’s recovery relating to third party claims asserted against it and related fees and expenses for which indemnification is available hereunder.

 

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SECTION 16   EFFECTIVE PERIOD, TERMINATION AND AMENDMENT.

This Agreement shall remain in full force and effect for an initial term ending September 28, 2019 (the “Initial Term”) and may be amended at any time by mutual agreement of the parties hereto. After the expiration of the Initial Term, this Agreement shall automatically renew for additional successive two-year terms (each, a “Renewal Term”), and may be terminated by any party with respect to such party during any Renewal Term by written instrument delivered or mailed, such termination to take effect not sooner than ninety (90) days after the date of such delivery or mailing. During the Initial Term and thereafter, either party may terminate this Agreement (i) in the event of the other party’s material breach of a material provision of this Agreement that the other party has either (a) failed to cure or (b) failed to establish a remedial plan to cure that is reasonably acceptable, within 60 days’ written notice of such breach, or (ii) in the event of the appointment of a conservator or receiver for the other party or upon the happening of a like event to the other party at the direction of an appropriate agency or court of competent jurisdiction. Upon termination of this Agreement for either (i) or (ii) above with respect to the Fund, the Fund shall pay Custodian its compensation due and shall reimburse Custodian for its costs, expenses and disbursements.

Notwithstanding the foregoing and for the purposes of this Agreement, in the event of the Fund’s liquidation or dissolution and distribution of its assets conducted in the ordinary course of the Fund’s determination to cease doing business, the Fund shall pay the Custodian’s compensation due, and reimburse the Custodian for its costs, expenses and disbursements incurred, through the date of such distribution.

The provisions of Sections 4.11, 14 and 15 of this Agreement shall survive termination of this Agreement for any reason.

SECTION 17.  SUCCESSOR CUSTODIAN.

If a successor custodian for the Fund shall be appointed by the Board, the Custodian shall, upon termination and receipt of Proper Instructions, deliver to such successor custodian at the office of the Custodian, duly endorsed and in the form for transfer, all securities of the Fund then held by it hereunder and shall transfer to an account of the successor custodian all of the securities of the Fund held in a Securities System or at the Underlying Transfer Agent.

If no such successor custodian shall be appointed, the Custodian shall, in like manner, upon receipt of Proper Instructions, deliver at the office of the Custodian and transfer such securities, funds and other properties in accordance with such resolution.

In the event that no Proper Instructions designating a successor custodian or alternative arrangements shall have been delivered to the Custodian on or before the date when such termination shall become effective, then the Custodian shall have the right to deliver to a bank or trust company, which is a “bank” as defined in the 1940 Act, doing business in Boston, Massachusetts or New York, New York, of its own selection, having an aggregate capital, surplus, and undivided profits, as shown by

 

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its last published report, of not less than $25,000,000, all securities, funds and other properties held by the Custodian on behalf of the Fund and all instruments held by the Custodian relative thereto and all other property held by it under this Agreement on behalf of the Fund, and to transfer to an account of such successor custodian all of the securities of the Fund held in any Securities System or at the Underlying Transfer Agent. Thereafter, such bank or trust company shall be the successor of the Custodian under this Agreement.

In the event that securities, funds and other properties remain in the possession of the Custodian after the date of termination hereof owing to failure of the Fund to provide Proper Instructions as aforesaid, the Custodian shall be entitled to fair compensation for its services during such period as the Custodian retains possession of such securities, funds and other properties and the provisions of this Agreement relating to the duties and obligations of the Custodian shall remain in full force and effect.

SECTION 18.  GENERAL.

SECTION 18.1  MASSACHUSETTS LAW TO APPLY. This Agreement shall be construed and the provisions thereof interpreted under and in accordance with laws of The Commonwealth of Massachusetts.

SECTION 18.2  PRIOR AGREEMENTS. This Agreement supersedes and terminates, as of the date hereof, all prior Agreements between the Fund and the Custodian relating to the custody of the Fund’s assets.

SECTION 18.3  ASSIGNMENT. This Agreement may not be assigned by (a) the Fund without the written consent of the Custodian or (b) by the Custodian without the written consent of the Fund.

SECTION 18.4  INTERPRETIVE AND ADDITIONAL PROVISIONS. In connection with the operation of this Agreement, the Custodian and the Fund, may from time to time agree on such provisions interpretive of or in addition to the provisions of this Agreement as may in their joint opinion be consistent with the general tenor of this Agreement. Any such interpretive or additional provisions shall be in a writing signed by all parties and shall be annexed hereto, provided that no such interpretive or additional provisions shall contravene any applicable federal or state regulations or any provision of the Fund’s Governing Documents. No interpretive or additional provisions made as provided in the preceding sentence shall be deemed to be an amendment of this Agreement.

SECTION 18.5  RESERVED.

SECTION 18.6  RESERVED.

SECTION 18.7  THE PARTIES. Any reference in this Agreement to “the parties” shall mean the Custodian and the Fund. The Fund hereby represents and warrants that (a) it is duly incorporated or

 

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0organized and is validly existing in good standing in its jurisdiction of incorporation or organization; (b) it has the requisite power and authority under applicable law and its Governing Documents to enter into and perform this Agreement; (c) all requisite proceedings have been taken to authorize it to enter into and perform this Agreement; (d) this Agreement constitutes its legal, valid, binding and enforceable agreement; and (e) its entrance into this Agreement shall not cause a material breach or be in material conflict with any other agreement or obligation of the Fund or any law or regulation applicable to it.

SECTION 18.8  REMOTE ACCESS SERVICES ADDENDUM. The Custodian and the Fund agree to be bound by the terms of the Remote Access Services Addendum hereto.

SECTION 18.9  NOTICES. Any notice, instruction or other instrument required to be given hereunder may be delivered in person to the offices of the parties as set forth herein during normal business hours or delivered prepaid registered mail or by telex, cable or telecopy to the parties at the following addresses or such other addresses as may be notified by any party from time to time.

 

To any Fund:

  

AllianceBernstein L.P.

1 N. Lexington Avenue, 18th Floor

White Plains, NY 10601

Attention: Juliana DeVincenzo

Facsimile No.: 201-633-6151

Telephone No.: 914-259-7722

To the Custodian:

  

STATE STREET BANK AND TRUST COMPANY

100 Summer Street, Floor 5

Boston, MA 02206

Attention: James Meagher, Managing Director

State Street Alternative Investment Solutions

Facsimile No.: 212-651-2393

Telephone No.: 617-662-7310

Such notice, instruction or other instrument shall be deemed to have been served in the case of a registered letter at the expiration of five business days after posting, in the case of cable twenty-four hours after dispatch and, in the case of telex, immediately on dispatch and if delivered outside normal business hours it shall be deemed to have been received at the next time after delivery when normal business hours commence and in the case of cable, telex or telecopy on the business day after the receipt thereof. Evidence that the notice was properly addressed, stamped and put into the post shall be conclusive evidence of posting.

SECTION 18.10  COUNTERPARTS. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all such counterparts taken together shall constitute one and the same Agreement.

 

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SECTION 18.11  SEVERABILITY. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision or provisions of this Agreement shall be held to be invalid, unlawful or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.

SECTION 18.12  CONFIDENTIALITY.

(a)    All information provided under this Agreement by a party to this Agreement (the “Disclosing Party”) to the other party to this Agreement (the “Receiving Party”) regarding the Disclosing Party’s business and operations shall be treated as confidential. Subject to the paragraphs in this Section below, all confidential information provided under this Agreement by Disclosing Party shall be used, including disclosure to third parties, by the Receiving Party, or its agents or service providers, solely for the purpose of performing or receiving the services and discharging the Receiving Party’s other obligations under the Agreement or managing the business of the Receiving Party and its affiliates, including financial and operational management and reporting, risk management, legal and regulatory compliance and client service management. The foregoing shall not be applicable to any information (a) that is publicly available when provided or thereafter becomes publicly available, other than through a breach of this Agreement, (b) that is independently derived by the Receiving Party without the use of any information provided by the Disclosing Party in connection with this Agreement, (c) that is disclosed to comply with any legal or regulatory proceeding, investigation, audit, examination, subpoena, civil investigative demand or other similar process, (d) that is disclosed as required by operation of law or regulation or as required to comply with the requirements of any market infrastructure that the Disclosing Party or its agents direct the Custodian or its affiliates to employ (or which is required in connection with the holding or settlement of instruments included in the assets subject to this Agreement), or (e) where the party seeking to disclose has received the prior written consent of the party providing the information, which consent shall not be unreasonably withheld.

(b)    In connection with the provision of the services and the discharge of its other obligations under this Agreement, the Custodian (which term for purposes of this Section 18.12 includes each of its parent company, branches and affiliates (“Affiliates”)) may collect and store information regarding the Fund and share such information with its Affiliates, agents and service providers in order and to the extent reasonably necessary (i) to carry out the provision of services contemplated under this Agreement and other agreements between the Fund and the Custodian or any of its Affiliates and (ii) to carry out management of its businesses, including, but not limited to, financial and operational management and reporting, risk management, legal and regulatory compliance and client service management.

(c)    Subject to paragraph (d) below, the Custodian and/or its Affiliates (except those Affiliates or business divisions principally engaged in the business of asset management) may use any data or

 

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other information (“Data”) obtained by such entities in the performance of their services under this Agreement or any other agreement between the Fund and the Custodian or one of its Affiliates, including Data regarding transactions and portfolio holdings relating to the Fund, and publish, sell, distribute or otherwise commercialize the Data. The initial use of Data by the Custodian is publication of research that quantifies the flow of investment funds into various markets or investments. Before using Data in any other services or reports, the Custodian will notify the Fund of such proposed service or report and provide the Fund thirty 30 days in which to evaluate the proposed use of Data. Such other services may not require the aggregation of data but any published information will be displayed in a manner designed to prevent attribution to or identification of such Data with the Fund. If within such thirty 30 day period the Fund notifies the Custodian that it objects to the use of Data in such product or service, this consent will not apply to use of Data in such product or service unless and until the Fund otherwise advises the Custodian. The Fund agrees that Custodian and/or its Affiliates may seek to profit and realize economic benefit from the commercialization and use of the Data, that such benefit will constitute part of the Custodian’s compensation for services under this Agreement or such other agreement, and the Custodian and/or its Affiliates shall be entitled to retain and not be required to disclose the amount of such economic benefit and profit to the Fund.

(d)    Except as expressly contemplated by this Agreement, nothing in this Section 18.12 shall limit the confidentiality and data-protection obligations of the Custodian and its Affiliates under this Agreement and applicable law. The Custodian shall cause any Affiliate, agent or service provider to which it has disclosed Data pursuant to this Section 18.12 to comply at all times with confidentiality and data-protection obligations as if it were a party to this Agreement.

SECTION 18.13   REPRODUCTION OF DOCUMENTS. This Agreement and all schedules, addenda, exhibits, appendices, attachments and amendments hereto may be reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic or other similar process. The parties hereto all/each agree that any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding, whether or not the original is in existence and whether or not such reproduction was made by a party in the regular course of business, and that any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence.

 

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SECTION 18.14  SHAREHOLDER COMMUNICATIONS ELECTION. SEC Rule 14b-2 requires banks which hold securities for the account of customers to respond to requests by issuers of securities for the names, addresses and holdings of beneficial owners of securities of that issuer held by the bank unless the beneficial owner has expressly objected to disclosure of this information. In order to comply with the rule, the Custodian needs the Fund to indicate whether it authorizes the Custodian to provide the Fund’s name, address, and share position to requesting companies whose securities the Fund owns. If the Fund tells the Custodian “no,” the Custodian will not provide this information to requesting companies. If the Fund tells the Custodian “yes” or does not check either “yes” or “no” below, the Custodian is required by the rule to treat the Fund as consenting to disclosure of this information for all securities owned by the Fund or any funds or accounts established by the Fund. For the Fund’s protection, the Rule prohibits the requesting company from using the Fund’s name and address for any purpose other than corporate communications. Please indicate below whether the Fund consents or objects by checking one of the alternatives below.

 

YES  ☐   The Custodian is authorized to release the Fund’s name, address, and share positions.
NO  ☒   The Custodian is not authorized to release the Fund’s name, address, and share positions.

SECTION 18.15  ADDITIONAL SUB-CERTIFICATIONS AND REPORTS. The Custodian shall provide to the Fund: (a) sub-certifications in connection with Sarbanes-Oxley Act of 2002 certification requirements; and (b) periodic reports and reasonable documentation for delivery to the Fund’s Chief Compliance Officer in connection with Rule 38a-1 under the 1940 Act with respect to the Services and the Custodian’s compliance with its operating policies and procedures related thereto.

SECTION 18.16  REGULATION GG. The Fund hereby represents and warrants that it does not engage in an “Internet gambling business,” as such term is defined in Section 233.2(r) of Federal Reserve Regulation GG (12 CFR 233) (“Regulation GG”). The Fund hereby covenants and agrees that it shall not engage in an Internet gambling business. In accordance with Regulation GG, the Fund is hereby notified that “restricted transactions,” as such term is defined in Section 233.2(y) of Regulation GG, are prohibited in any dealings with the Custodian pursuant to this Agreement or otherwise between or among any party hereto.

SECTION 18.17  LOAN SERVICES ADDENDUM. The Custodian and the Fund agree to be bound by the terms of the Loan Services Addendum hereto.

SECTION 18.18  DATA PRIVACY. The Custodian will implement and maintain a written information security program that contains appropriate security measures to safeguard the personal information of the Fund’s shareholders, employees, directors and/or officers that the Custodian receives, stores, maintains, processes or otherwise accesses in connection with the provision of services hereunder. For these purposes, “personal information” shall mean (i) an individual’s name

 

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(first initial and last name or first name and last name), address or telephone number plus (a) social security number, (b) drivers license number, (c) state identification card number, (d) debit or credit card number, (e) financial account number or (f) personal identification number or password that would permit access to a person’s account or (ii) any combination of the foregoing that would allow a person to log onto or access an individual’s account. Notwithstanding the foregoing “personal information” shall not include information that is lawfully obtained from publicly available information, or from federal, state or local government records lawfully made available to the general public.

[Remainder of Page Left Intentionally Blank]

 

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Exhibit 10.2

SIGNATURE PAGE

IN WITNESS WHEREOF, each of the parties has caused this instrument to be executed in its name and behalf by its duly authorized representative under seal as of the date first above-written.

AB PRIVATE CREDIT INVESTORS CORPORATION

 

By:   /s/ Wesley Raper
 

Name: Wesley Raper

Title: Chief Financial Officer & Treasurer

STATE STREET BANK AND TRUST COMPANY

 

By:   /s/ Lisa B. Hunt-Lewis
 

Name: Lisa B. Hunt-Lewis

Title: Managing Director

EX-99.10.3 4 d460253dex99103.htm EXPENSE SUPPORT AND CONDITIONAL REIMBURSEMENT AGREEMENT Expense Support and Conditional Reimbursement Agreement

Exhibit 10.3

EXPENSE SUPPORT AND

CONDITIONAL REIMBURSEMENT AGREEMENT

This Expense Support and Conditional Reimbursement Agreement (the “Agreement”) is made this 29th day of September, 2017, by and between AB Private Credit Investors Corporation, a Maryland Corporation (the “Company”), and AB Private Credit Investors LLC (the “Advisor”).

WHEREAS, the Company is a closed-end management investment company that has elected to be treated as a business development company under the Investment Company Act of 1940 (the “Investment Company Act”);

WHEREAS, the Company has retained the Advisor to furnish investment advisory services to the Company pursuant to the terms and conditions set forth in the investment advisory agreement, dated July 27, 2017, entered into by and between the Company and the Advisor (the Investment Advisory Agreement);

WHEREAS, the Company and the Advisor have determined that it is appropriate and in the best interests of the Company to limit certain of the Company’s Operating Expenses (as defined in Section 2(b)) to no more than 1.5% of the Company’s average quarterly gross assets (the “Expense Cap”).

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the parties hereby agree as follows:

1) Advisor’s Expense Payments to the Company

 

  a) On a quarterly basis, the Advisor shall reimburse the Company for Operating Expenses (as defined in Section 2(b)) (i) exceeding the Expense Cap, or (ii) exceeding the Expense Cap plus any additional percentage of the Company’s average quarterly gross assets as deemed appropriate in the sole discretion of the Advisor. Any payment required to be made by the Advisor pursuant to the preceding sentence shall be referred to herein as an “Expense Payment.” The actual percentage of Operating Expenses paid by the Company in any quarter after deducting any Expense Payment, as a percentage of the Company’s average quarterly gross assets, shall be referred to herein the “Percentage Limit”).

 

  b) The Advisor’s obligation to make an Expense Payment shall automatically become a liability of the Advisor and the right to such Expense Payment shall be an asset of the Company on the last business day of the applicable quarter. The Expense Payment for any quarter shall be paid by the Advisor to the Company in any combination of cash or other immediately available funds, and/or offset against amounts due from the Company to the Advisor no later than the earlier of (i) the date on which the Company closes its books for such quarter, or (ii) forty-five days after the end of such quarter.

2) Reimbursement of Expense Payments by the Company

 

  a) Any Expense Payment by the Advisor pursuant to this Agreement shall be subject to repayment by the Company on a quarterly basis within the three years following the fiscal quarter of the Company in which the Operating Expenses were paid or absorbed, if the total Operating Expenses for the current quarter, including Reimbursement Payments (as defined below), expressed as a percentage of the Company’s average gross assets during such quarter is less than the then-current Percentage Limit, if any, and the Percentage Limit that was in effect at the time when the Advisor reimbursed the Operating Expenses that are the subject of the repayment, subject to Sections 2(b) and 2(c) as applicable. Any payment required to be made by the Company pursuant to this Section 2(a) shall be referred to herein as a “Reimbursement Payment”.

 

  b)

For purposes of this Agreement, “Operating Expenses means the Company’s Total Operating Expenses (as defined below), excluding base management fees, incentive fees, distribution and shareholder servicing fees, financing fees and costs, interest expense, brokerage commissions and extraordinary expenses.


  Total Operating Expenses” means all of the Company’s operating costs and expenses incurred, as determined in accordance with generally accepted accounting principles for investment companies. The calculation of average net assets shall be consistent with such periodic calculations of average net assets in the Company’s financial statements.

 

  c) Notwithstanding anything to the contrary in this Agreement, no Reimbursement Payment for any quarter shall be made if: (1) the Effective Rate of Distributions Per Share (as defined below) declared by the Company at the time of such Reimbursement Payment is less than or equal to the Effective Rate of Distributions Per Share at the time the Expense Payment was made to which such Reimbursement Payment relates, or (2) the Company’s Operating Expense Ratio at the time of such Reimbursement Payment is greater than or equal to the Operating Expense Ratio (as defined below) at the time the Expense Payment was made to which such Reimbursement Payment relates. For purposes of the Agreement, “Effective Rate of Distributions Per Share” means the annualized rate (based on a 365 day year) of regular cash distributions per share exclusive of returns of capital, distribution rate reductions due to distribution and shareholder fees, and declared special dividends or special distributions, if any. The “Operating Expense Ratio” is calculated by dividing Operating Expenses in any quarter by the Company’s average net assets in such quarter.

 

  d) The Company’s obligation to make a Reimbursement Payment shall automatically become a liability of the Company and the right to such Reimbursement Payment shall be an asset of the Advisor on the last business day of the applicable quarter. The Reimbursement Payment for any quarter shall be paid by the Company to the Advisor in any combination of cash or other immediately available funds as promptly as possible following such quarter. Any Reimbursement Payment shall be deemed to have reimbursed the Advisor for Expense Payments in chronological order beginning with the earliest Expense Payment eligible for reimbursement under this Section 2 made by the Advisor to the Company within three years prior to the last business day of the quarter in which such Reimbursement Payment obligation is accrued. The Company’s Audit Committee shall review the basis and determination of Reimbursement Payments on a quarterly basis.

3) Termination and Survival

 

  a) This Agreement shall become effective as of the date of the Company’s Initial Closing, as such term is described in the Company’s subscription document.

 

  b) This Agreement may be terminated at any time, without the payment of any penalty, by the Company or the Advisor, with or without notice.

 

  c) This Agreement shall automatically terminate in the event of (i) the termination of the Investment Advisory Agreement, or (ii) the Board of Directors of the Company makes a determination to dissolve or liquidate the Company.

 

  d) Sections 3 and 4 of this Agreement shall survive any termination of this Agreement. Notwithstanding anything to the contrary, Section 2 of this Agreement shall survive any termination of this Agreement with respect to any Expense Payments that have not been reimbursed by the Company to the Advisor.

4) Miscellaneous

 

  a) The captions of this Agreement are included for convenience only and in no way define or limit any of the provisions hereof or otherwise affect their construction or effect.

 

  b) This Agreement contains the entire agreement of the parties and supersedes all prior agreements, understandings and arrangements with respect to the subject matter hereof.

 

  c)

Notwithstanding the place where this Agreement may be executed by any of the parties hereto, this Agreement shall be construed in accordance with the laws of the State of Maryland. For so long as the Company is regulated as a business development company under the Investment Company Act, this


  Agreement shall also be construed in accordance with the applicable provisions of the Investment Company Act. In such case, to the extent the applicable laws of the State of Maryland or any of the provisions herein conflict with the provisions of the Investment Company Act, the latter shall control. Further, nothing in this Agreement shall be deemed to require the Company to take any action contrary to the Company’s Articles of Amendment and Restatement or Bylaws, as each may be amended or restated from time to time, or to relieve or deprive the Board of Directors of the Company of its responsibility for and control of the conduct of the affairs of the Company.

 

  d) 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 and, to this extent, the provisions of this Agreement shall be deemed to be severable.

 

  e) The Company shall not assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the Advisor.

 

  f) This Agreement may be amended in writing by mutual consent of the parties. This Agreement may be executed by the parties on any number of counterparts, delivery of which may occur by facsimile or as an attachment to an electronic communication, each of which shall be deemed an original, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date first written above.

 

AB PRIVATE CREDIT INVESTORS CORPORATION
By:   /s/ J. Brent Humphries
 

Name: J. Brent Humphries

Title: President and Chairman of the Board

 

AB PRIVATE CREDIT INVESTORS LLC
By:   /s/ J. Brent Humphries
 

Name: J. Brent Humphries

Title: President

EX-99.10.4 5 d460253dex99104.htm TRANSFER AGENCY AGREEMENT Transfer Agency Agreement

Exhibit 10.4

TRANSFER AGENCY AGREEMENT

BETWEEN

AB PRIVATE CREDIT INVESTORS CORPORATION AND

ALLIANCEBERNSTEIN INVESTOR SERVICES, INC.

This Agreement, dated September 26, 2017, is between AB Private Credit Investors Corporation, a Maryland corporation, whose principal place of business is 1345 Avenue of the Americas, New York, New York 10105 (the “Fund”) and AllianceBernstein Investor Services, Inc. with a place of business at 8000 IH 10 W, 4th Floor, San Antonio, Texas 78230 (“ABIS”).

1.    Intention of the Parties; Definitions

1.1    Intention of the Parties

 

  (a) ABIS is a transfer agent registered with the United States Securities and Exchange Commission (“SEC”) and an affiliate of AB Private Credit Investors LLC, the Fund’s investment adviser (“Investment Adviser”).

 

  (b) The Fund is a corporation structured as an externally managed, non-diversified closed-end management investment company that has filed an election to be regulated as a business development company (“BDC”) under the Investment Company Act of 1940, with the purpose of investment of its assets in certain types of securities and instruments, as more fully described in the Fund’s Confidential Private Placement Memorandum, as amended from time to time (the “Memorandum”).

 

  (c) The Fund has requested ABIS to provide transfer agency, dividend disbursing agency, tender offer agency and shareholder servicing services with respect to the Fund, which ABIS has agreed to do subject to the terms and conditions appearing in this Agreement and the Schedules. ABIS will be responsible for the performance of only those duties set forth in this Agreement and the Schedules thereto.

1.2    Definitions; Interpretation

 

  (a) As used in this Agreement and the Schedules to this Agreement, the following terms have the meaning hereinafter stated.

“Affiliate”means an entity controlling, controlled by, or under common control with, ABIS or the Fund, as the case may be.

“Applicable Law” means any applicable statute (including the Investment Company Act of 1940, as amended (the “1940 Act”), the Investment Advisers Act of 1940, as amended, the Securities Act of 1933, as amended (“1933 Act”) and the Securities Exchange Act of 1934, as amended), treaty, rule, regulation or common law and any applicable decree, injunction, judgment, order, formal interpretation or ruling issued by a court or governmental entity.

“Authorized Person” means any person who has been designated by the Fund (or by any agent designated by the Fund, including the Investment Adviser) to act on behalf of the Fund under this Agreement. Such persons will continue to be Authorized Persons until such time as ABIS receives, and has had reasonable time to act upon, Instructions from the Fund (or its agent) that any such person is no longer an Authorized Person.

“Board”means the board of directors of the Fund.


Confidential Information” means and includes all non-public information concerning the Fund which ABIS receives in the course of providing services under this Agreement. Nevertheless, the term Confidential Information shall not include information which is or becomes available to the general public by means other than ABIS’s breach of the terms of this Agreement or information which ABIS obtains on a non-confidential basis from a person who is not known to be subject to any obligation of confidence to any person with respect to that information.

“Fees” means the payments described in Article 4, to be made by the Fund to ABIS for the Services.

Instruction” means an instruction which ABIS believes in good faith to have been given by an Authorized Person.

Liabilities” means any liabilities, losses, claims, costs, damages, penalties, fines, obligations, taxes (other than taxes based solely on ABIS’s income) or expenses of any kind whatsoever (including, without limitation, reasonable attorneys’, accountants’, consultants’ or experts’ fees and disbursements).

Service Commencement Date” means the first date on which ABIS is entitled to receive fees under this Agreement.

Services” means the transfer agency, dividend disbursing agency, tender offer agency and shareholder servicing services described in Schedule 1.

“Share Transaction” means a purchase, redemption or exchange transaction of Shares.

Shareholder Records” means the records maintained by ABIS containing information concerning the Shareholders and Share Transactions.

Shares” means the Shares issued by the Fund.

Shareholder” means a holder of Shares.

 

  (b) Headings are for reference and convenience only and are not intended to affect interpretation.

 

  (c) References to Articles and Sections are to Articles and Sections of this Agreement and references to sub-sections and paragraphs are to sub-sections of the Sections and paragraphs of the sub-sections in which they appear.

 

  (d) Unless the context requires otherwise, references in this Agreement to “persons” shall include legal entities as well as natural persons; references importing the singular shall include the plural (and vice versa); use of the generic masculine pronoun shall include the feminine; use of the term “including” shall be deemed to mean “including but not limited to,” and references to appendices and numbered sections shall be to such addenda and provisions herein; all such addenda are hereby incorporated in this Agreement by reference.

2.    What ABIS is Required to Do

2.1    The Services

 

  (a) The Fund hereby appoints ABIS to act as transfer agent of and to provide the Services with respect to the Fund and ABIS agrees to act as transfer agent of and to provide the Services with respect to the Fund (subject to any limitations notified by the Fund to ABIS in writing and subject to any requirements or restrictions imposed on the performance of such functions by any statutory provisions for the time being in force), until this Agreement is terminated as hereinafter provided.

 

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  (b) The Fund represents that any disclosure in its Memorandum regarding the Agreement will accurately reflect the terms and conditions of the Agreement in all material respects.

 

  (c) ABIS shall act as agent of the Fund solely with respect to the duties of ABIS described in this Agreement.

 

  (d) The Fund acknowledges that ABIS is not providing any legal, tax or investment advice in providing the Services.

2.2    Storage of Records.

ABIS is authorized to maintain all accounts, registers, corporate books and other documents electronically; provided they are capable of being reproduced in legible form in accordance with Applicable Law and can be made available to the Fund promptly upon request. ABIS shall make any records relating to the Services provided under this Agreement available upon request and further agrees to preserve for the periods prescribed in Rule 31a-2 of the 1940 Act any such records germane to ABIS’ transfer agency duties as are required to be maintained by Rule 31a-1 of the 1940 Act.

2.3    Compliance with Laws and Regulations.

ABIS will comply with Applicable Law in the United States with respect to the provision of the Services. The Fund undertakes to comply with Applicable Law in the United States and in each state in which the Fund conducts business, to the extent that compliance with such Applicable Law is relevant to the provision or receipt of the Services.

3.    Instructions

3.1    Acting on Instructions; Method of Instruction; and Unclear Instructions.

 

  (a) The Fund authorizes ABIS to accept, rely upon and/or act upon any Instructions reasonably believed to be genuine. The Fund will indemnify ABIS against, and hold each of them harmless from, any Liabilities that may be imposed on, incurred by, or asserted against ABIS as a result of any action or omission taken in accordance with any Instruction unless the Liabilities result from an act of negligence, fraud or willful misconduct on the part of ABIS with respect to the manner in which such Instructions are followed.

 

  (b) ABIS shall promptly notify an Authorized Person or Shareholder, as applicable, if ABIS determines that an Instruction does not contain all information reasonably necessary for ABIS to carry out the Instruction. ABIS may decline to act upon an Instruction if it does not receive clarification or confirmation reasonably satisfactory to it. ABIS will not be liable for any loss arising from any reasonable delay in carrying out any such Instruction while it seeks such missing information, clarification or confirmation or in declining to act upon any Instruction for which it does not receive clarification reasonably satisfactory to it. In the event ABIS does not act upon such Instructions, ABIS will notify the Fund of its decision to do so as soon as reasonably practicable

3.2    Verification and Security Procedures.

 

  (a) ABIS and the Fund shall comply with any applicable security procedures with respect to the delivery or authentication of Instructions and shall ensure that any codes, passwords or similar devices are reasonably safeguarded.

 

  (b) Either party may record any of its telephone communications.

 

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4.    Fees and Expenses Owing to ABIS

4.1    Fees and Expenses.

 

  (a) The Fund will pay ABIS for the Services under this Agreement the fees as set forth in Schedule 2 hereto, or as otherwise agreed upon in writing between the Fund and ABIS from time to time.

 

  (b) In addition to the fees provided for above, the Fund shall be responsible for the payment of all governmental or similar fees, charges, taxes, duties and imposts levied in or by any relevant authority in the United States on or in respect of the Fund which are incurred by ABIS, and any other customary or extraordinary expenses. The Fund shall reimburse ABIS for any of the foregoing and for all reasonable out-of-pocket expenses including without limitation telephone, postage and stationery and expenses of a similar nature as ABIS may incur in the execution of its duties under this Agreement.

5.    Additional Provisions

5.1    Representations of the Fund and ABIS.

 

  (a) The Fund represents and warrants that (i) assuming execution and delivery of this Agreement by ABIS, this Agreement is the Fund’s legal, valid and binding obligation, enforceable against Fund in accordance with its terms, (ii) it has full power and authority to enter into and has taken all necessary Board action to authorize the execution of this Agreement, and (iii) it has not relied on any oral or written representation made by ABIS or any person on its behalf, and acknowledges that this Agreement sets out the extent the duties of ABIS.

 

  (b) ABIS represents and warrants that (i) assuming execution and delivery of this Agreement by the Fund, this Agreement is ABIS’s legal, valid and binding obligation, enforceable against ABIS in accordance with its terms and (ii) it has full power and authority to enter into and has taken all necessary corporate action to authorize the execution of this Agreement.

 

  (c) ABIS will be subject to and shall comply with all Applicable Laws, rules and regulations concerning the collection, use, disclosure, processing and transfer of information obtained under this Agreement. Without limiting the generality of the foregoing, ABIS represents and warrants that it adheres to, and will continue to adhere to for such period as this Agreement remains in effect, the Investment Adviser’s written comprehensive information security policy (the “Information Security Policy”) that provides adequate protections for the safeguarding of Shareholder personal information received or obtained by ABIS in the performance of this Agreement. ABIS further represents and warrants that the Information Security Policy is, and will continue to be, compliant with Applicable Law.

5.2    The Fund to Provide Certain Information to ABIS.

Upon request, the Fund will promptly provide to ABIS such information about itself and its financial status as ABIS may reasonably request, including organizational documents and its current audited and unaudited financial statements, its Memorandum and any contracts, regulatory documents or opinions from a lawyer or accountant that are reasonably necessary in order to provide the Services described in this Agreement.

 

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5.3    Information Used to Provide the Services.

The Fund agrees with ABIS that any information the Fund or the Investment Adviser provides to ABIS pursuant to this Agreement shall be complete and accurate to enable ABIS to perform its responsibilities pursuant to this Agreement.

6.    When ABIS May Be Liable to the Fund

6.1    Standard of Care; Liability.

 

  (a) ABIS will use reasonable care in performing its obligations under this Agreement. ABIS will not be responsible for any loss or damage suffered by the Fund with respect to any matter as to which ABIS has satisfied its obligation of reasonable care unless the same results from an act of negligence, fraud or willful misconduct on the part of ABIS.

 

  (b) ABIS will be liable and will indemnify the Fund, its directors, officers, employees and controlling persons, for the Fund’s direct Liabilities to the extent they result from ABIS’s fraud, negligence, or willful misconduct in performing its duties as set out in this Agreement.

 

  (c) The Fund will indemnify ABIS and its directors, officers, employees and controlling persons against, and hold them harmless from, any Liabilities that may be imposed on, incurred by or asserted against such persons directly arising out of ABIS’s performance under this Agreement, provided ABIS has not acted with negligence or engaged in fraud or willful misconduct in connection with the Liabilities in question.

 

  (d) Nevertheless, under no circumstances will either party be liable for any indirect, incidental, consequential or special damages (including, without limitation, lost profits or business) of any form incurred by any person or entity, whether or not foreseeable and regardless of the type of action in which such a claim may be brought, resulting from either party’s performance under this Agreement.

6.2    Force Majeure.

ABIS will maintain and update from time to time business continuation and disaster recovery procedures with respect to its global business that it determines from time to time meet reasonable commercial standards. To the extent permitted by Applicable Law, ABIS shall not be liable for the loss of all or part of any record maintained or preserved by it pursuant to this Agreement or for any delays or errors occurring by reason of circumstances beyond its control, including but not limited to acts of civil or military authorities, national emergencies, fire, flood or catastrophe, acts of God, insurrection, terrorism, war, riot, or failure of transportation, communication or power supply, except to the extent that ABIS shall have failed to use its best efforts to minimize the likelihood of occurrence of such circumstances or to mitigate any loss or damage to the Fund caused by such circumstances.

6.3    Limitations of ABIS’s Liability.

 

  (a) ABIS may rely on information provided to it by or on behalf of the Fund, or which was prepared or maintained by the Fund or any third party on behalf of the Fund, in the course of discharging its duties under this Agreement. Provided ABIS shall have acted with reasonable care and without negligence, willful misconduct or fraud, ABIS shall not be liable to any person for any Liabilities suffered by any person as a result of ABIS: (i) having relied upon the authority, accuracy, truth or completeness of information including, without limitation, information supplied to ABIS by the Fund or by the Investment Adviser or any third party which is not a subcontractor of ABIS, including but not limited to, information in relation to trades in respect of the Fund or expenses of the Fund; (ii) having relied upon the authority, accuracy, truth and completeness of information furnished to ABIS by any pricing services, data services, or provider of other market information or information concerning securities held by the Fund.

 

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  (b) ABIS shall not be liable for any losses resulting from a failure by any person (other than an Affiliate or subcontractor of ABIS) to provide ABIS with any information or notice that is reasonably necessary for the provision of the Services provided however that the losses do not result from an act of negligence, fraud or willful misconduct on the part of ABIS. ABIS shall use reasonable efforts to find alternative sources of information in the event of any such failure. In the event of any such failure that may affect the performance of the Services, ABIS shall promptly notify the Fund.

 

  (c) ABIS shall not be liable for any Liabilities whatsoever incurred or suffered by any party hereto, whether on their own account or for the account of the Fund, as a result of the failure of the Fund or its agents, officers or employees to comply with the laws or regulations of any jurisdiction in which Shares are offered.

 

  (d) The Fund agrees that the accounting reports provided by ABIS, as well as any Share class or other similar reports, are to enable the Fund to fulfill its statutory reporting and investor subscription/redemption obligations, and are not for investment, treasury or hedging purposes.

7.    Term and Termination

7.1    Term and Termination.

This Agreement shall be in effect for an initial term of three years from the Services Commencement Date (the “Initial Term”). The Agreement will automatically renew for additional one year periods effective from the first anniversary of the date of the end of the Initial Term of this Agreement. Notwithstanding anything to the contrary in this Agreement, each party may terminate this Agreement at any time, without penalty, on one hundred and twenty (120) days prior written notice to the other party.

7.2    Other Grounds for Termination.

Either party may terminate this Agreement immediately upon written notice to the other party following the occurrence of any of the following:

 

  (i) the other party being declared bankrupt, entering into an agreement with creditors, obtaining a suspension of payment, being put under court controlled management or being the subject of a similar measure;

 

  (ii) the relevant federal or state authority withdrawing its authorization of either party necessary to perform services under this Agreement; or

 

  (iii) the other party committing any material breach of this Agreement and failing to remedy such breach (if capable of remedy) within 90 days of being given written notice of the material breach, unless the parties agree to extend the period to remedy the breach.

7.3    Consequences of Termination.

Termination of this Agreement under the provisions of this Article 7 will be without prejudice to the performance of any party’s obligations under this Agreement with respect to all outstanding transactions at the date of termination.

 

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7.4    Transition following Termination.

As soon as reasonably practicable following its resignation or termination of appointment becoming effective and subject to payment of any amount owing to ABIS under this Agreement, ABIS agrees to transfer such records and related supporting documentation as are held by it under this Agreement to any replacement provider of the Services or to such other person as the Fund may direct. Except as otherwise provided in Section 7.2, ABIS shall provide the Services until a replacement transfer agent is in place, subject to the terms and conditions of this Agreement (including Article 4). ABIS will also provide reasonable assistance to its successor for such transfer, subject to the payment of reasonable expenses and charges for such assistance. The Fund undertakes to use its best efforts to appoint a new service provider as soon as reasonably possible.

8.    Miscellaneous

8.1    Notices.

Notices pursuant to Article 8 of this Agreement shall be sent or served by registered mail, overnight delivery services, such as Federal Express (FedEx) or United Parcel Service (UPS), etc., courier services or hand delivery to the address of the respective parties as set out on the first page of this Agreement, unless notice of a new address is given to the other party in writing. Notice will not be deemed to be given unless it has been received.

8.2    Successors and Assigns.

This Agreement will be binding on each of the parties hereto and their respective successors and permitted assigns, but the parties agree that neither party can assign its rights and obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed.

8.3    Entire Agreement.

This Agreement, including the Schedules, sets out the entire Agreement between the parties in connection with the subject matter hereof, and this Agreement supersedes any other agreement, statement, or representation relating to the Services under this Agreement, whether oral or written. Amendments must be in writing and signed by both parties.

8.4    Governing Law and Jurisdiction.

This Agreement will be construed, regulated and administered under the laws of the United States or State of New York, as applicable, without regard to New York’s principles regarding conflict of laws, except that the foregoing shall not reduce any statutory right to choose New York law or forum. The United States District Court for the Southern District of New York will have the sole and exclusive jurisdiction over any lawsuit or other judicial proceeding relating to or arising from this Agreement. If that court lacks federal subject matter jurisdiction, the Supreme Court of the State of New York, New York County will have sole and exclusive jurisdiction. Either of these courts will have the proper venue for any such lawsuit or judicial proceeding, and the parties waive any objection to venue or their convenience as a forum. The parties agree to submit to the jurisdiction of any of the courts specified and to accept service of process to vest personal jurisdiction over them in any of these courts. The parties further hereby knowingly, voluntarily and intentionally waive, to the fullest extent permitted by Applicable Law, any right to a trial by jury with respect to any such lawsuit or judicial proceeding arising or relating to this Agreement or the transactions contemplated hereby.

8.5    Severability; Waiver; and Survival.

(a) If one or more provisions of this Agreement are held invalid, illegal or unenforceable in any respect on the basis of any particular circumstances or in any jurisdiction, the validity, legality and enforceability of such provision or provisions under other circumstances or in other jurisdictions and of the remaining provisions will not in any way be affected or impaired.

(b) Except as otherwise provided herein, no failure or delay on the part of either party in exercising any power or right under this Agreement operates as a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise, or the exercise of any

 

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other power or right. No waiver by a party of any provision of this Agreement, or waiver of any breach or default, is effective unless it is in writing and signed by the party against whom the waiver is to be enforced.

(c) The parties’ rights, protections and remedies under this Agreement shall survive its termination.

8.6    Confidentiality.

 

  (a) Subject to Section 8.6(b), ABIS will hold all Confidential Information in confidence and will not disclose any Confidential Information except as may be required by Applicable Law, a regulator with jurisdiction over ABIS’s or the Fund’s business, or with the consent of the Fund.

 

  (b) The Fund authorizes ABIS to disclose Confidential Information to:

 

  (i) any service providers and/or vendors to the Fund that ABIS believes are reasonably required by such person to provide the relevant services and are subject to a legal or contractual obligation to hold the Confidential Information in confidence;

 

  (ii) its professional advisers, auditors or public accountants;

 

  (iii) its Affiliates; and

 

  (iv) any revenue authority or any governmental entity.

 

  (c) Except as otherwise required by Applicable Law, by a regulator with jurisdiction over ABIS’s or the Fund’s business, with the consent of the other party or as needed to enforce the terms of this Agreement, the parties shall hold the terms and conditions of this Agreement, including, without limitation, any commercial terms, in confidence.

8.7    Delegation.

ABIS may, with the consent of the Fund, subcontract the performance of any portion of any Services to be provided under this Agreement to any agent of ABIS and may reimburse the agent for those services it performs at such rates as ABIS may determine; provided that no such reimbursement will increase the amount payable by the Fund pursuant to this Agreement; and provided further that ABIS shall remain ultimately responsible as transfer agent to the Fund.

8.8    Counterparts.

This Agreement may be executed in several counterparts each of which will be deemed to be an original and together will constitute one and the same agreement.

8.9    No Third Party Beneficiaries.

A person who is not a party to this Agreement shall have no right to enforce any term of this Agreement.

 

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AS WITNESS the hand of the duly authorized officers of the parties hereto:

 

AB PRIVATE CREDIT INVESTORS CORPORATION             ALLIANCEBERNSTEIN INVESTOR SERVICES, INC.
By:   /s/ J. Brent Humphries     By:   /s/ Peter Callahan

Name:

Title:

Date:

 

J. Brent Humphries

President

9/26/2017

   

Name:

Title:

Date:

 

Peter Callahan

Senior Vice President

9/26/2017

 

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EX-99.10.5 6 d460253dex99105.htm DIVIDEND REINVESTMENT PLAN Dividend Reinvestment Plan

Exhibit 10.5

DIVIDEND REINVESTMENT PLAN

OF

AB PRIVATE CREDIT INVESTORS CORPORATION

Effective as of September 26, 2017

AB Private Credit Investors Corporation, a Maryland corporation (the “Company), hereby adopts the following plan (the “Plan) with respect to cash dividend distributions declared by its Board of Directors on shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”).

1. Unless a stockholder specifically elects to have any portion of its cash dividend distributions reinvested by the Company in the Company’s Common Stock pursuant to paragraph 3 below, all cash dividend distributions hereafter declared by the Company’s Board of Directors shall be paid in cash to each stockholder, and no action shall be required on such stockholder’s part to receive such cash.

2. Such cash dividend distributions shall be payable on such date or dates (each, a “Payment Date”) as may be fixed from time to time by the Board of Directors to stockholders of record at the close of business on the record date(s) established by the Board of Directors for the cash dividend distribution involved.

3. Prior to the initial public offering of the Company’s Common Stock, the Company intends to use primarily newly issued shares of its Common Stock to implement the Plan. The number of shares of Common Stock to be issued to a stockholder that has elected to have its cash dividend distributions reinvested in accordance with this paragraph 3 (each, a “Participant”) shall be determined by dividing the total dollar amount of the distribution payable to such Participant by the net asset value per share of the Company’s Common Stock as of the last day of the Company’s fiscal quarter immediately preceding the date such distribution was declared (the “Reference NAV”); provided that in the event a distribution is declared on the last day of a fiscal quarter, the Reference NAV shall be deemed to be the net asset value per share of the Company’s Common Stock as of such day; provided further that the number of shares to be issued to a Participant pursuant to the foregoing shall be rounded downward to the nearest whole number to avoid the issuance of fractional shares, it being understood that any fractional share otherwise issuable to a Participant but for this proviso shall instead be paid to such Participant in cash. To exercise the option of having its cash dividend distributions reinvested, such stockholder shall notify the Company and State Street Bank and Trust Company (referred to as the Plan Administrator”), in writing (using the form of notice set forth as an appendix to the Subscription Agreement signed by such stockholder or any other form of notice as distributed to such stockholder by the Company) so that such notice is received by the Plan Administrator no later than 10 days prior to the record date fixed by the Board of Directors for the first distribution such stockholder wishes to have its cash dividend distribution reinvested. Such election shall remain in effect until the stockholder shall notify the Plan Administrator in writing of such stockholder’s desire to change its election, which notice shall be delivered to the Plan Administrator no later than 10 days prior to the record date fixed by the Board of Directors for the first distribution for which such stockholder wishes its new election to take effect.

4. Shares of Common Stock issued pursuant to the Plan in connection with any cash dividend shall be issued to each Participant (i) in the event that the applicable Reference NAV has been approved by the Company’s Board of Directors (or a committee thereof) prior to the Payment Date of such cash dividend, on the Payment Date or (ii) otherwise, promptly upon the date such approval has been provided by the Company’s Board of Directors. All shares of Common Stock issued pursuant to the Plan shall be issued in non-certificated form and shall be credited to such Participant on the books and records of the Company. Cash payable to a Participant in lieu of fractional shares pursuant to paragraph 3 shall be paid contemporaneously with the issuance of such shares in connection with such cash dividend.


5. The Plan Administrator will confirm to each Participant each issuance of shares of Common Stock made to such Participant pursuant to the Plan as soon as practicable following the date of such issuance.

6. The Plan Administrator’s service fee, if any, and expenses for administering the Plan will be paid for by the Company. There will be no brokerage charges or other charges to stockholders who participate in the Plan.

7. The Plan may be terminated by the Company upon notice in writing mailed to each Participant at least 30 days prior to the effectiveness of such termination.

8. These terms and conditions may be amended or supplemented by the Company at any time. Any such amendment or supplement may include an appointment by the Plan Administrator in its place and stead of a successor agent under the terms and conditions agreed upon by the Company, with full power and authority to perform all or any of the acts to be performed by the Plan Administrator as agreed to by the Company.

9. The Plan Administrator will at all times act in good faith and use its best efforts within reasonable limits to ensure its full and timely performance of all services to be performed by it under this Plan and to comply with applicable law, but assumes no responsibility and shall not be liable for loss or damage due to errors.

10. These terms and conditions shall be governed by the laws of the State of New York, without regard to the conflicts of law principles thereof, to the extent such principles would require or permit the application of the laws of another jurisdiction.