EXHIBIT (2)(j)
CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of May 26, 2004 by and between PFPC TRUST
COMPANY, a limited purpose trust company incorporated under the laws of Delaware
("PFPC Trust"), and X.X. XXXXXX MULTI-STRATEGY FUND, L.L.C., a Delaware limited
liability company (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as a closed-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain PFPC Trust to provide custodian
services, and PFPC Trust wishes to furnish custodian services as more fully
described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Administrator" means PFPC Inc., in its capacity as the
administrator of the Fund.
(d) "Authorized Person" means the Manager, any officer of the Fund and
any other person authorized by the Fund or the Manager to give Oral
or Written Instructions on behalf of the Fund. An Authorized
Person's scope of authority may be limited by setting forth such
limitation in a written document signed by both parties
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hereto. For the avoidance of doubt, each of the Administrator and
the Escrow Agent shall be an Authorized Person with respect to any
Oral Instructions or Written Instructions which they receive and
which they are required to forward to PFPC Trust or which require
appropriate Oral Instructions or Written Instructions to be given to
PFPC Trust in order to be properly carried out.
(e) "Book-Entry System" means the Federal Reserve Treasury book-entry
system for United States and federal agency securities, its
successor or successors, and its nominee or nominees and any
book-entry system registered with the SEC under the 1934 Act.
(f) "CEA" means the Commodities Exchange Act, as amended.
(g) "Escrow Agent" means PFPC Inc., in its capacity as the escrow agent
of the Fund.
(h) "Interests" mean the limited liability company interests of the
Fund.
(i) "Manager" means X.X. Xxxxxx Alternative Asset Management, Inc., the
investment manager of the Fund.
(j) "Oral Instructions" mean oral instructions received by PFPC Trust
from an Authorized Person or from a person reasonably believed by
PFPC Trust to be an Authorized Person.
(k) "Property" means:
(i) any and all securities and other investment items which the
Fund may from time to time deposit, or cause to be deposited,
with PFPC Trust or which PFPC Trust may from time to time hold
for the Fund;
(ii) all income in respect of any of such securities or other
investment items;
(iii) all proceeds of the sale of any of such securities or
investment items; and
(iv) all proceeds of the sale of securities issued by the Fund,
which are received
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by PFPC Trust from time to time, from or on behalf of the
Fund.
(l) "SEC" means the Securities and Exchange Commission.
(m) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(n) "Written Instructions" mean (i) written instructions sent by an
Authorized Person and received by PFPC Trust or (ii) trade
instructions transmitted by means of an electronic transaction
reporting system which requires the use of a password or other
authorized identifier in order to gain access. The Written
Instructions under (i) above may be delivered by any method
described in Section 17 below.
2. APPOINTMENT. The Fund hereby appoints PFPC Trust to provide custodian
services to the Fund and PFPC Trust accepts such appointment and agrees to
furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide PFPC Trust with the following:
(a) at PFPC Trust's request, certified or authenticated copies of the
resolutions of the Fund's Board of Directors, approving the
appointment of PFPC Trust or its affiliates to provide services;
(b) a copy of the Fund'most recent effective registration statement;
(c) a copy of the Fund's advisory agreement;
(d) a copy of any placement agent agreement with respect to the
Interests;
(e) a copy of the Fund's administration agreement;
(f) copies of any distribution and/or shareholder servicing plans and
agreements made in respect of the Fund; and
(g) copies of any and all amendments or supplements to the foregoing.
4. COMPLIANCE WITH LAWS.
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PFPC Trust shall comply with material applicable requirements of the Securities
Laws and material laws, rules and regulations of governmental authorities having
jurisdiction with respect to the duties to be performed by PFPC Trust hereunder.
Except as specifically set forth herein, PFPC Trust assumes no responsibility
for such compliance by the Fund or any other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall act
only upon Oral Instructions or Written Instructions and any other
relevant information in the possession of the Administrator or the
Escrow Agent that has been received by PFPC Trust.
(b) PFPC Trust shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person in
accordance with this Agreement. PFPC Trust may assume that any Oral
Instructions or Written Instructions received hereunder are not in
any way inconsistent with the provisions of organizational documents
of the Fund or of any vote, resolution or proceeding of the Fund's
Board of Directors or of the Fund's members, unless and until PFPC
Trust receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Trust Written Instructions
confirming Oral Instructions so that PFPC Trust receives the Written
Instructions by the close of business on the business day following
the day that such Oral Instructions are received as designated by
the Fund. The fact that such confirming Written Instructions are not
received by PFPC Trust or differ from the Oral Instructions shall in
no way invalidate the transactions or enforceability of the
transactions authorized by the Oral Instructions or PFPC Trust's
ability to rely upon such Oral
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Instructions pending receipt of Written Instructions; provided that
PFPC Trust shall immediately notify the Fund and the Manager of any
discrepancies between any Oral Instructions and the Written
Instructions which purport to confirm those Oral Instructions, and
indicate whether it acted in accordance with the Oral Instructions
or the later Written Instructions.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If PFPC Trust is in doubt as to any action it
should or should not take, PFPC Trust shall request directions or
advice, including Oral Instructions or Written Instructions, from
the Fund.
(b) Advice of Counsel. If PFPC Trust is in doubt as to any question of
law pertaining to any action it should or should not take, PFPC
Trust may, following consultation with the Manager in accordance
with Subsection (d) below, request advice from counsel of its own
choosing (who may be counsel for the Fund, the Fund's investment
adviser or PFPC Trust, at the option of PFPC Trust). The reasonable
costs and expenses of counsel will be borne by the Fund.
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC Trust
receives from the Fund, and the advice it receives from counsel,
PFPC Trust may, following consultation with the Manager in
accordance with subsection (d) below, rely upon and follow the
advice of counsel.
(d) Consultation with the Authorized Person. Notwithstanding subsections
(a) to (c) above, PFPC Trust agrees to act in accordance with all
Oral Instructions and Written Instructions or to notify the relevant
Authorized Person as soon as
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possible (and in any event prior to any deadline for execution of
such instructions) of any inability to act in accordance with, or
any uncertainty with respect to, such instructions. Prior to seeking
any advice of counsel pursuant to subsection (b) above, and prior to
acting on the advice of counsel pursuant to subsection (c) above,
PFPC Trust agrees to provide notice to the Manager and consult with
the Manager (i) regarding the choice of counsel and the likely cost
involved, and (ii) to clarify and/or resolve PFPC Trust's concern
with the relevant Oral Instructions or Written Instructions or the
conflict between such instructions and the advice of counsel.
(e) Protection of PFPC Trust. Subject to Section 14(a), PFPC Trust shall
be indemnified by the Fund and without liability for any action PFPC
Trust takes or does not take in reliance upon directions or advice
or Oral Instructions or Written Instructions PFPC Trust receives
from or on behalf of the Fund or upon advice of counsel and which
PFPC Trust believes, in good faith, to be consistent with those
directions or advice or Oral Instructions or Written Instructions.
Subject to sub-section (d) above, nothing in this Section 6 shall be
construed so as to impose an obligation upon PFPC Trust to seek such
directions or advice or Oral Instructions or Written Instructions.
7. RECORDS; VISITS. The books and records pertaining to the Fund, which are
in the possession or under the control of PFPC Trust, shall be the
property of the Fund. Such books and records shall be prepared, maintained
and made available to regulators as required by the 1940 Act, the
Investment Advisers Act of 1940 ("Adviser Act") and other applicable
securities laws, rules and regulations. The Fund and Authorized Persons
shall
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have access to such books and records at all times during PFPC Trust's
normal business hours. Upon the reasonable request of the Fund, copies of
any such books and records shall be provided by PFPC Trust to the Fund or
to an authorized representative of the Fund, at the Fund's expense.
8. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that is
competitively sensitive material, and not generally known to the public,
including, but not limited to, information about product plans, marketing
strategies, finances, operations, customer relationships, customer
profiles, customer lists, sales estimates, business plans, and internal
performance results relating to the past, present or future business
activities of the Fund, the Manager, an Authorized Person or PFPC Trust,
their respective subsidiaries and affiliated companies and the customers,
clients and suppliers of any of them; (b) any scientific or technical
information, design, process, procedure, formula, or improvement that is
commercially valuable and secret in the sense that its confidentiality
affords the Fund, the Manager, an Authorized Person or PFPC Trust, or any
of their respective affiliates, a competitive advantage over its
competitors; (c) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code, object
code, flow charts, databases, inventions, know-how, and trade secrets,
whether or not patentable or copyrightable; and (d) anything designated as
confidential. Notwithstanding the foregoing, information shall not be
subject to such confidentiality obligations if: (a) it is already known to
the receiving party at the time it is obtained; (b) it is or becomes
publicly known or available through no wrongful act of the receiving
party; (c) it is rightfully received from a third
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party who, to the best of the receiving party's knowledge, is not under a
duty of confidentiality; (d) it is released by the protected party to a
third party without restriction; (e) it is required to be disclosed by the
receiving party pursuant to a requirement of a court order, subpoena,
governmental or regulatory agency or law (provided the receiving party
will provide the other party written notice of such requirement, to the
extent such notice is permitted); (f) release of such information by PFPC
Trust is necessary in connection with the provision of services under this
Agreement; (g) it is relevant to the defense of any claim or cause of
action asserted against the receiving party; or (h) it has been or is
independently developed or obtained by the receiving party through no
wrongful act of the receiving party.
9. COOPERATION WITH ACCOUNTANTS. PFPC Trust shall cooperate with the Fund's
independent public accountants and shall take all reasonable action to
make any requested information available to such accountants as reasonably
requested by the Fund.
10. PFPC SYSTEM. PFPC Trust shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable
or copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by PFPC Trust in
connection with the services provided by PFPC Trust to the Fund.
11. DISASTER RECOVERY. PFPC Trust shall enter into and shall maintain in
effect with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to
the extent appropriate equipment is available. In the event of equipment
failures, PFPC Trust shall, at no additional expense to the Fund, take
reasonable steps to minimize service interruptions. PFPC Trust shall
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have no liability with respect to the loss of data or service
interruptions caused by equipment failure provided such loss or
interruption is not caused by PFPC Trust's own willful misfeasance, fraud,
bad faith, negligence or reckless disregard of its duties or obligations
under this Agreement.
12. COMPENSATION. As compensation for custody services rendered by PFPC Trust
during the term of this Agreement, the Fund will pay to PFPC Trust a fee
or fees as may be agreed to in writing from time to time by the Fund and
PFPC Trust.
13. INDEMNIFICATION. The Fund agrees to indemnify, defend and hold harmless
PFPC Trust and its affiliates, including their respective officers,
directors, agents and employees from all taxes, charges, expenses,
assessments, claims and liabilities (including, without limitation,
attorneys' fees and disbursements and liabilities arising under the
Securities Laws and any state and foreign securities and blue sky laws)
arising directly or indirectly from any action or omission to act which
PFPC Trust takes in good faith in connection with the provision of
services to the Fund. Neither PFPC Trust, nor any of its affiliates, shall
be indemnified against any liability (or any expenses incident to such
liability) caused by PFPC Trust's or its affiliates' own willful
misfeasance, fraud, bad faith, negligence or reckless disregard in the
performance of PFPC Trust's activities under this Agreement. The
provisions of this Section 13 shall survive termination of this Agreement.
14. RESPONSIBILITY OF PFPC TRUST.
(a) PFPC Trust shall be under no duty to take any action hereunder on
behalf of the Fund except as specifically set forth herein or as may
be specifically agreed to by PFPC Trust and the Fund in a written
amendment hereto. PFPC Trust shall be
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obligated to exercise care and diligence in the performance of its
duties hereunder and to act in good faith in performing services
provided for under this Agreement. PFPC Trust shall be liable only
for any damages arising out of PFPC Trust's failure to perform its
duties under this Agreement to the extent such damages arise out of
PFPC Trust's willful misfeasance, fraud, bad faith, negligence or
reckless disregard of its duties under this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, except
as may arise from PFPC Trust's willful misfeasance, fraud, bad
faith, negligence or reckless disregard, (i) PFPC Trust shall not be
liable for losses, delays, failure, errors, interruption or loss of
data occurring directly or indirectly by reason of circumstances
beyond its reasonable control, including without limitation acts of
God; action or inaction of civil or military authority; public
enemy; war; terrorism; riot; fire; flood; sabotage; epidemics; labor
disputes; civil commotion; interruption, loss or malfunction of
utilities, transportation, computer or communications capabilities;
insurrection; elements of nature; or non-performance by a third
party; and (ii) PFPC Trust shall not be under any duty or obligation
to inquire into and shall not be liable for the validity or
invalidity, authority or lack thereof, or truthfulness or accuracy
or lack thereof, of any instruction, direction, notice, instrument
or other information which PFPC Trust reasonably believes to be
genuine.
(c) Notwithstanding anything in this Agreement to the contrary neither
PFPC Trust nor its affiliates shall be liable for any consequential,
special or indirect losses or damages, whether or not the likelihood
of such losses or damages was known by
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PFPC Trust or its affiliates
(d) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(e) Notwithstanding anything in this Agreement to the contrary (other
than as specifically provided in Section 15(h)(ii)(B)(4) and Section
15(h)(iii)(A) of this Agreement) and without prejudice to any duties
or obligations which the Administrator may have to the Fund pursuant
to the Administration Agreement, the Fund shall be responsible for
all filings, tax returns and reports on any transactions undertaken
pursuant to this Agreement, or in respect of the Property or any
collections undertaken pursuant to this Agreement, which may be
requested by any relevant authority. In addition, the Fund shall be
responsible for the payment of all taxes and similar items
(including without limitation penalties and interest related
thereto).
(f) The provisions of this Section 14 shall survive termination of this
Agreement.
15. DESCRIPTION OF SERVICES.
(a) Delivery of the Property. The Fund will deliver or arrange for
delivery to PFPC Trust, all the Property owned by the Fund including
cash received as a result of the distribution of Interests, during
the term of this Agreement. PFPC Trust will not be responsible for
such property until actual receipt.
(b) Receipt and Disbursement of Money. PFPC Trust, acting upon Written
Instructions, shall open and maintain a separate account (the
"Account") in the Fund's name using all cash received from or for
the account of the Fund, subject to the terms of this Agreement.
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PFPC Trust shall make cash payments from or for the Account of the
Fund only for:
(i) purchases of securities in the name of the Fund, PFPC Trust
on behalf of the Fund, PFPC Trust's nominee or a
sub-custodian or nominee thereof on behalf of the Fund as
provided in sub-section (j) and for which PFPC Trust has
received a copy of the broker's or dealer's confirmation or
payee's invoice, as appropriate;
(ii) purchases of Interests delivered to PFPC Trust;
(iii) purchases of Interests in connection with any tender offer
with respect to the Fund;
(iv) payment of, subject to Written Instructions, interest,
taxes (provided that tax which PFPC Trust considers is
required to be deducted or withheld "at source" will be
governed by Section 15(h)(iii)(B) of this Agreement),
administration, accounting, distribution, advisory and
management fees which are to be borne by the Fund;
(v) payment to, subject to receipt of Written Instructions, the
Administrator, as agent for the members, of an amount equal
to the amount of dividends and distributions stated in the
Written Instructions to be distributed in cash by the
Administrator to members, or, in lieu of paying the
Administrator, PFPC Trust may arrange for the direct
payment of cash dividends and distributions to members in
accordance with procedures mutually agreed upon from time
to time by and among the Fund, PFPC Trust and the
Administrator;
(vi) payments, upon receipt of Written Instructions, in
connection with the conversion, exchange or surrender of
securities owned or subscribed to by the Fund and held by
or delivered to PFPC Trust;
(vii) payments of the amounts of dividends received with respect
to securities sold short;
(viii) subject to the prior receipt, review and approval by the
Manager of appropriate invoices, payments to PFPC Trust for
its services hereunder;
(ix) payments to the Escrow Agent, upon receipt of Written
Instructions, of amounts required to meet the repurchase
proceeds payable to members of the Fund in connection with
any tender offers; and
(x) other payments, upon Written Instructions.
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PFPC Trust is hereby authorized to endorse and collect all checks,
drafts or other orders for the payment of money received as
custodian for the Account.
(c) Receipt of Securities; Subcustodians. PFPC Trust shall hold all
securities received by it for the Account in a separate account that
physically segregates such securities from those of any other
persons, firms or corporations, except for securities held in a
Book-Entry System or through a sub-custodian or depository. All such
securities shall be held or disposed of only upon Written
Instructions pursuant to the terms of this Agreement. PFPC Trust
shall have no power or authority to assign, hypothecate, pledge or
otherwise dispose of any such securities or investment, except upon
the express terms of this Agreement or upon Written Instructions
authorizing the transaction. In no case may any member of the Fund's
Board of Directors, or any officer, employee or agent of the Fund
withdraw any securities.
At PFPC Trust's own expense and for its own convenience and in
compliance with the 1940 Act, Advisers Act and other applicable
securities laws, rules and regulations, PFPC Trust may enter into
sub-custodian agreements with other banks or trust companies to
perform duties described in this sub-section (c) with respect to
domestic assets. Such bank or trust company shall have an aggregate
capital, surplus and undivided profits, according to its last
published report, which is not materially less than PFPC Trust. In
addition, such bank or trust company must be qualified to act as
custodian and agree to comply with the relevant provisions of
applicable rules and regulations. Any such arrangement will not be
entered into without prior written approval of the Fund.
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In addition, and in compliance with the 1940 Act, Advisers Act
and other applicable securities laws, rules and regulations, PFPC
Trust may enter into arrangements with sub-custodians with respect
to services regarding foreign assets. Any such arrangement will not
be entered into without prior written approval of the Fund.
PFPC Trust shall remain responsible for the acts and omissions
of any sub-custodian chosen by PFPC Trust under the terms of this
sub-section (c) to the same extent that PFPC Trust is responsible
for its own acts and omissions under this Agreement. PFPC Trust
shall be responsible for compliance with the 1940 Act, Advisers Act
and other applicable securities laws, rules and regulations with
respect to sub-custodians and any arrangements with U.S. domestic
sub-custodians.
(d) Transactions Requiring Instructions. Upon receipt of Oral
Instructions or Written Instructions and not otherwise, PFPC Trust
shall:
(i) deliver any securities held for the Fund against the receipt
of payment for the sale of such securities or otherwise in
accordance with standard market practice;
(ii) execute and deliver to such persons as may be designated in
such Oral Instructions or Written Instructions, proxies,
consents, authorizations, and any other instruments whereby
the authority of the Fund as owner of any securities may be
exercised;
(iii) deliver any securities to the issuer thereof, or its agent,
when such securities are called, redeemed, retired or
otherwise become payable at the option of the holder; provided
that, in any such case, the cash or other consideration is to
be delivered to PFPC Trust;
(iv) distribute any securities held by the Fund in connection with
any distribution-in-kind by the Fund, including in connection
with any tender offer;
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(v) deliver any securities held for the Fund against receipt of
other securities or cash issued or paid in connection with
the liquidation, reorganization, refinancing, tender offer,
merger, consolidation or recapitalization of any corporation,
or the exercise of any conversion privilege;
(vi) deliver any securities held for the Fund to any protective
committee, reorganization committee or other person in
connection with the reorganization, refinancing, merger,
consolidation, recapitalization or sale of assets of any
corporation, and receive and hold under the terms of this
Agreement such certificates of deposit, interim receipts or
other instruments or documents as may be issued to it to
evidence such delivery;
(vii) make such transfer or exchanges of the assets of the Fund and
take such other steps as shall be stated in said Oral
Instructions or Written Instructions to be for the purpose of
effectuating a duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of
the Fund;
(viii) release securities belonging to the Fund to any bank or trust
company for the purpose of a pledge or hypothecation to
secure any loan incurred by the Fund; provided, however, that
securities shall be released only upon payment to PFPC Trust
of the monies borrowed, except that in cases where additional
collateral is required to secure a borrowing already made
subject to proper prior authorization, further securities may
be released for that purpose; and repay such loan upon
redelivery to it of the securities pledged or hypothecated
therefor and upon surrender of the note or notes evidencing
the loan;
(ix) release and deliver securities owned by the Fund in
connection with any repurchase agreement entered into by the
Fund, but only on receipt of payment therefor; and pay out
monies of the Fund in connection with such repurchase
agreements, but only upon the delivery of the securities;
(x) release and deliver or exchange securities owned by the Fund
in connection with any conversion of such securities,
pursuant to their terms, into other securities;
(xi) release and deliver securities to a broker in connection with
the broker's custody of margin collateral relating to futures
and options transactions;
(xii) release and deliver securities owned by the Fund for the
purpose of redeeming in kind shares of the Fund upon delivery
thereof to PFPC Trust; and
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(xiii) release and deliver or exchange securities owned by the Fund
for other purposes.
PFPC Trust must also receive a certified resolution
describing the nature of the corporate purpose and the name
and address of the person(s) to whom delivery shall be made
when such action is pursuant to sub-paragraph d (xiii).
(e) Use of Book-Entry System or Other Depository. PFPC Trust is
authorized and instructed, on a continuous basis, to deposit in
Book-Entry Systems and other depositories all securities belonging
to the Fund eligible for deposit therein and to utilize Book-Entry
Systems and other depositories to the extent possible in connection
with settlements of purchases and sales of securities by the Fund,
and deliveries and returns of securities loaned, subject to
repurchase agreements or used as collateral in connection with
borrowings. PFPC Trust shall continue to perform such duties until
it receives Written Instructions or Oral Instructions authorizing
contrary actions. Notwithstanding anything in this Agreement to the
contrary, PFPC Trust's use of a Book-Entry System shall comply with
the requirements of Rule 17f-4 under the 1940 Act.
PFPC Trust shall administer a Book-Entry System or other depository
as follows:
(i) With respect to securities of the Fund which are maintained in
a Book-Entry System or another depository, the records of PFPC
Trust shall identify by book-entry or otherwise those
securities belonging to the Fund.
(ii) Assets of the Fund deposited in a Book-Entry System or another
depository will (to the extent consistent with applicable law
and standard practice) at all times be segregated from any
assets and cash controlled by PFPC Trust in other than a
fiduciary or custodian capacity but may be commingled with
other assets held in such capacities.
PFPC Trust will provide the Fund with such reports on its own system
of internal control as the Fund may reasonably request from time to
time.
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(f) Registration of Securities. All Securities held for the Fund which
are issued or issuable only in bearer form, except such securities
held in the Book-Entry System or in another depository, shall be
held by PFPC Trust in bearer form; all other securities held for the
Fund may be registered in the name of the Fund on behalf of the
Fund, PFPC Trust, a Book-Entry System, another depository, a
sub-custodian, or any duly appointed nominee of the Fund, PFPC
Trust, Book-Entry System, depository or sub-custodian. The Fund
reserves the right to instruct PFPC Trust as to the method of
registration and safekeeping of the securities of the Fund. The Fund
agrees to furnish to PFPC Trust appropriate instruments to enable
PFPC Trust to hold or deliver in proper form for transfer, or to
register in the name of its nominee or in the name of the Book-Entry
System or in the name of another appropriate entity, any securities
which it may hold for the Accounts.
(g) Voting and Other Action. Neither PFPC Trust nor its nominee shall
vote any of the securities held pursuant to this Agreement by or for
the account of the Fund, except in accordance with Written
Instructions. PFPC Trust, directly or through the use of another
entity, shall execute in blank and promptly deliver all notices,
proxies and proxy soliciting materials received by PFPC Trust as
custodian of the Property to the registered holder of such
securities. If the registered holder is not the Fund, then Written
Instructions or Oral Instructions must designate the person who owns
such securities.
(h) Transactions Not Requiring Instructions. In the absence of contrary
Written Instructions, PFPC Trust is authorized to take the following
actions:
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(i) Collection of Income and Other Payments.
(A) collect and receive for the account of the Fund, all
income, dividends, distributions, coupons, option
premiums, other payments and similar items, included or
to be included in the Property, and, in addition,
promptly advise the Fund of such receipt and credit such
income to the Fund's custodian account;
(B) endorse and deposit for collection, in the name of the
Fund, checks, drafts, or other orders for the payment of
money;
(C) receive and hold for the account of the Fund all
securities received as a distribution on the Fund's
securities as a result of a stock dividend, share
split-up or reorganization, recapitalization,
readjustment or other rearrangement or distribution of
rights or similar securities issued with respect to any
securities belonging to the Fund and held by PFPC Trust
hereunder;
(D) present for payment and collect the amount payable upon
all securities which may mature or be called, redeemed,
retired or otherwise become payable (on a mandatory
basis) on the date such securities become payable; and
(E) take any action which may be necessary and proper in
connection with the collection and receipt of such
income and other payments and the endorsement for
collection of checks, drafts, and other negotiable
instruments.
(ii) Miscellaneous Transactions.
(A) PFPC Trust is authorized to deliver or cause to be
delivered Property against payment or other
consideration or written receipt therefor in the
following cases:
(1) for examination by a broker or dealer selling for
the account of the Fund in accordance with street
delivery custom;
(2) for the exchange of interim receipts or temporary
securities for definitive securities; and
(3) for transfer of securities into the name of the
Fund or PFPC Trust or a sub-custodian or a nominee
of one of the foregoing, or for exchange of
securities for a different number of bonds,
certificates, or other evidence,
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representing the same aggregate face amount or
number of units bearing the same interest rate,
maturity date and call provisions, if any;
provided that, in any such case, the new
securities are to be delivered to PFPC Trust.
(B) unless and until PFPC Trust receives Oral Instructions
or Written Instructions to the contrary, PFPC Trust
shall:
(1) pay all income items held by it which call for
payment upon presentation and hold the cash
received by it upon such payment for the account
of the Fund;
(2) collect interest and cash dividends received, with
notice to the Fund, to the account of the Fund;
(3) hold for the account of the Fund all stock
dividends, rights and similar securities issued
with respect to any securities held by PFPC Trust;
and
(4) subject to receipt of such documentation and
information as PFPC Trust may request, execute as
agent on behalf of the Fund all necessary
ownership certificates required by a national
governmental taxing authority or under the laws of
any U.S. state now or hereafter in effect,
inserting the Fund's name on such certificate as
the owner of the securities covered thereby, to
the extent it may lawfully do so.
(iii) Other Matters.
(A) subject to receipt of such documentation and information
as PFPC Trust may request, PFPC Trust will, in such
jurisdictions as PFPC Trust may agree from time to time,
seek to reclaim or obtain a reduction with respect to
any withholdings or other taxes relating to assets
maintained hereunder (provided that PFPC Trust will not
be liable for failure to obtain any particular relief in
a particular jurisdiction); and
(B) PFPC Trust is authorized to deduct or withhold and shall
pay to the appropriate revenue authority any sum in
respect of tax which is required to be deducted or
withheld "at source" by any relevant law or practice. At
the request of the Fund, PFPC Trust will notify the Fund
of such deductions or withholding within twenty four
(24) hours.
19
(i) Segregated Accounts. PFPC Trust shall upon receipt of Written
Instructions or Oral Instructions establish and maintain segregated
accounts on its records for and on behalf of the Fund. Such accounts
may be used to transfer cash and securities, including securities in
a Book-Entry System or other depository:
(i) for the purposes of compliance by the Fund with the procedures
required by a securities or option exchange, providing such
procedures comply with the 1940 Act and any releases of the
SEC relating to the maintenance of segregated accounts by
registered investment companies; and
(ii) upon receipt of Written Instructions, for other purposes.
(j) Purchases of Securities. PFPC Trust shall settle purchased
securities upon receipt of Oral Instructions or Written Instructions
that specify:
(i) the name of the issuer and the title of the securities,
including CUSIP number if applicable;
(ii) the number of shares or the principal amount purchased and
accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase; and
(vi) the name of the person from whom or the broker through whom
the purchase was made. PFPC Trust shall upon receipt of
securities purchased by or for the Fund (or otherwise in
accordance with standard market practice) pay out of the
monies held for the account of the Fund the total amount
payable to the person from whom or the broker through whom the
purchase was made, provided that the same conforms to the
total amount payable as set forth in such Oral Instructions or
Written Instructions.
(k) Sales of Securities. PFPC Trust shall settle sold securities upon
receipt of Oral Instructions or Written Instructions that specify:
(i) the name of the issuer and the title of the security,
including CUSIP number if applicable;
20
(ii) the number of shares or principal amount sold, and accrued
interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Fund upon such sale;
(vi) the name of the broker through whom or the person to whom the
sale was made; and
(vii) the location to which the security must be delivered and
delivery deadline, if any.
PFPC Trust shall deliver the securities upon receipt of the
total amount payable to the Fund upon such sale, provided that the
total amount payable is the same as was set forth in the Oral
Instructions or Written Instructions. Notwithstanding the other
provisions thereof, PFPC Trust may accept payment in such form as is
consistent with standard industry practice and may deliver
securities and arrange for payment in accordance with the customs
prevailing among dealers in securities.
(l) Reports; Proxy Materials.
(i) PFPC Trust shall furnish to the Fund the following reports:
(A) such periodic and special reports as the Fund may
reasonably request;
(B) a monthly statement summarizing all transactions and
entries for the account of the Fund, listing each
portfolio security belonging to the Fund (with the
corresponding security identification number) held at
the end of such month and stating the cash balance of
the Fund at the end of such month.
(C) the reports required to be furnished to the Fund
pursuant to Rule 17f-4 of the 1940 Act; and
21
(D) such other information as may be agreed upon from time
to time between the Fund and PFPC Trust.
(ii) PFPC Trust shall transmit promptly to the Fund all written
information relating to the Property, including any proxy
statement, proxy material, notice of a call or conversion or
similar communications, received by it as custodian of the
Property. PFPC Trust shall be under no other obligation to
inform the Fund as to such actions or events. For
clarification, upon termination of this Agreement and the
transfer of the Fund's property to a successor custodian or a
bank or trust company chosen by PFPC Trust in accordance with
Section 16 below, PFPC Trust shall have no responsibility to
transmit such material or to inform the Fund or any other
person of such actions or events.
(m) Crediting of Accounts. PFPC Trust may in its sole discretion credit
an Account with respect to income, dividends, distributions,
coupons, option premiums, other payments or similar items prior to
PFPC Trust's actual receipt thereof, and in addition PFPC Trust may
in its sole discretion credit or debit the assets in an Account on a
contractual settlement date with respect to any sale, exchange or
purchase applicable to the Account; provided that nothing herein or
otherwise shall require PFPC Trust to make any advances or to credit
any amounts until PFPC Trust's actual receipt thereof. If PFPC Trust
in its sole discretion credits an Account with respect to (a)
income, dividends, distributions, coupons, option premiums, other
payments or similar items on a contractual payment date or otherwise
in advance of PFPC Trust's actual receipt of the amount due, (b) the
22
proceeds of any sale or other disposition of assets on the
contractual settlement date or otherwise in advance of PFPC Trust's
actual receipt of the amount due or (c) provisional crediting of any
amounts due, and (i) PFPC Trust is subsequently unable to collect
full and final payment for the amounts so credited within a
reasonable time period using reasonable efforts or (ii) pursuant to
standard industry practice, law or regulation PFPC Trust is required
to repay to a third party such amounts so credited, or if any
Property has been incorrectly credited, PFPC Trust shall have the
absolute right in its sole discretion without demand to reverse any
such credit or payment, to debit or deduct the amount of such credit
or payment from the Account, and to otherwise pursue recovery of any
such amounts so credited from the Fund.
(n) Collections. All collections of monies or other property in respect,
or which are to become part, of the Property (but not the
safekeeping thereof upon receipt by PFPC Trust) shall be at the sole
risk of the Fund. If payment is not received by PFPC Trust within a
reasonable time after proper demands have been made, PFPC Trust
shall notify the Fund in writing, including copies of all demand
letters, any written responses and memoranda of all oral responses
and shall await instructions from the Fund. PFPC Trust shall not be
obliged to take legal action for collection unless and until
reasonably indemnified to its satisfaction. PFPC Trust shall also
notify the Fund as soon as reasonably practicable whenever income
due on securities is not collected in due course and shall provide
the Fund with periodic status reports of such income collected after
a reasonable time.
(o) Foreign Exchange.
23
PFPC Trust and/or sub-custodians may enter into or arrange foreign
exchange transactions (at such rates as they may consider
appropriate) in order to facilitate transactions under this
Agreement, and such entities and/or their affiliates may receive
compensation in connection with such foreign exchange transactions.
(p) DataPath(sm) Services.
Provide to the Fund the DataPath(sm) Internet access services as set
forth on Exhibit A attached hereto and made a part hereof, as such
Exhibit A may be amended from time to time. Persons who are
authorized to access DataPath(sm) are set forth on Exhibit B
attached hereto and made a part hereof, as such Exhibit B may be
amended from time to time.
16. DURATION AND TERMINATION. This Agreement shall continue until terminated
by the Fund or PFPC Trust on ninety (90) days' prior written notice to the
other party; provided that PFPC Trust shall not be permitted to terminate
this Agreement without the prior written consent of the Fund except in
conjunction with a termination of the administration agreement between the
Administrator and the Fund. In the event this Agreement is terminated
(pending appointment of a successor to PFPC Trust or vote of the
shareholders of the Fund to dissolve or to function without a custodian of
its cash, securities or other property), PFPC Trust shall not deliver
cash, securities or other property to the Fund. It may deliver them to a
bank or trust company of PFPC Trust's choice, provided such entity shall
have an aggregate capital, surplus and undivided profits, according to its
last published report, which is not materially less than PFPC Trust.
17. NOTICES
24
(a) Any notice, consent, instruction or other instrument or
communication required or permitted to be given hereunder by a party
may be delivered in person, sent by courier service or certified or
registered post, postage-prepaid, faxed or transmitted via e-mail to
the address of the other parties set forth below or such other
address as may be notified in writing to the other parties, and
shall be deemed to have been properly delivered or given hereunder
and shall be effective on: (i) the date of delivery if delivered in
person or sent by Federal Express or other recognized courier who
obtains a signature acknowledging receipt; (ii) the date of
transmission, if faxed or transmitted via e-mail, provided that
receipt of a facsimile or e-mail is verified by telephone (and
failing such verification, only upon actual receipt); or (iii) five
days after the same has been tendered for delivery by the post if
sent by certified or registered post, postage prepaid.
(b) Notices to the Fund shall be sent to:
X.X. XXXXXX MULTI-STRATEGY FUND, L.L.C.
c/o X.X. Xxxxxx Alternative Asset Management, Inc.
Attn: Xxxx X. Xxxxxxx, Chief Administrative Officer
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Email: Xxxx.Xxxxxxx@xxxxxxxx.xxx
(c) Notices to PFPC Trust shall be sent to:
PFPC TRUST COMPANY
Attn: Xxx Xxxxxxxx
0000 Xxxxxxx Xxxxxxxxx
0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
25
Fax: 000-000-0000
E-mail: Xxx.Xxxxxxxx@xxxx.xxx
(d) Notices to other persons:
Additional notice shall be sent to additional persons as identified
in writing by the Fund and any person subsequently designated by the
Fund.
18. AMENDMENTS. This Agreement, or any term hereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
19. DELEGATION; ASSIGNMENT. This Agreement may not be assigned by PFPC Trust
without the written consent of the Fund; provided, however, that PFPC
Trust may assign its rights and delegate its duties hereunder to any
affiliate of PFPC Trust or of The PNC Financial Services Group, Inc.
without such consent, provided that PFPC Trust gives the Fund 30 days'
prior written notice of such assignment or delegation.
20. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
21. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof,
provided that the parties may embody in one or more separate
documents their agreement, if any, with respect to delegated duties.
(b) No Representations or Warranties. Except as expressly provided in
this
26
Agreement, PFPC Trust hereby disclaims all representations and
warranties, express or implied, made to the Fund or any other
person, including, without limitation, any warranties regarding
quality, suitability, merchantability, fitness for a particular
purpose or otherwise (irrespective of any course of dealing, custom
or usage of trade), of any services or any goods provided incidental
to services provided under this Agreement. PFPC Trust disclaims any
warranty of title or non-infringement except as otherwise set forth
in this Agreement.
(c) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees not to
make any modifications to its registration statement or adopt any
policies which would affect materially the obligations or
responsibilities of PFPC Trust hereunder without the prior written
approval of PFPC Trust, which approval shall not be unreasonably
withheld or delayed.
(d) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or
effect.
(e) Governing Law. This Agreement shall be deemed to be a contract made
in Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(f) Partial Invalidity. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(g) Successors and Assigns. This Agreement shall be binding upon and
shall inure to
27
the benefit of the parties hereto and their respective successors
and permitted assigns.
(h) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
28
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and Director
X.X. XXXXXX MULTI-STRATEGY FUND, L.L.C.
By: Xxxxxxx Associates, L.L.C.,
Its Managing Member
By: /s/ Xx. Xxxxxx X. Xxxxxxx
-------------------------
Name: Xx. Xxxxxx X. Xxxxxxx
Title: Chairman and Sole Member
29
EXHIBIT A
DATAPATH(SM) ACCESS SERVICES
1. PFPC TRUST SERVICES. PFPC Trust will:
(a) Provide Internet access to PFPC DataPath(SM) ("DataPath(SM)") at
xxx.xxxxxxxxxxxx.xxx or other site operated by PFPC Trust (the
"Site") for Fund portfolio data otherwise supplied by PFPC Trust to
Fund service providers via other electronic and manual methods.
Types of information to be provided on the Site include: (i) data
relating to portfolio securities (other than Compliance Reporting
Services, as defined below), (ii) general ledger balances and (iii)
net asset value-related data, including NAV and net asset,
distribution and yield detail (collectively, the "Accounting
Services"). Types of information to be provided on the Site also
include: data relating to portfolio securities relative to certain
provisions of the Internal Revenue Code, securities laws or the
Fund's offering documents (collectively, the "Compliance Reporting
Services")(the Accounting Services and the Compliance Reporting
Services are together referred to in Exhibits Y and Z as the
"Services"). The parties hereby agree that the Compliance Reporting
Services are back-end reports only and that PFPC Trust (i) makes no
representation or warranty about the accuracy of the Compliance
Reporting Services, or how complete such information is, at any time
and (ii) shall have no liability whatsoever with respect to the
accuracy or inaccuracy or complete or incomplete nature of the
Compliance Reporting Services or reliance thereon by any party.
(b) Supply each of the individuals specified on Exhibit B as authorized
users of DataPath(SM) (the "Users") with a logon ID and Password.
The Manager is authorized to update the individuals listed on
Exhibit B at any time by notice to PFPC Trust;
(c) Provide to Users access to the information listed in (a) above using
standard inquiry tools and reports. With respect to the Accounting
Services, Users will be able to modify standard inquiries to develop
user-defined inquiry tools; however, PFPC will review computer costs
for running user-defined inquiries and may assess surcharges for
those requiring excessive hardware resources. To the extent that
PFPC Trust is requested to develop custom reports or enhancements
which are not usually provided to PFPC Trust customers, the costs
for providing such reports or enhancements will be agreed in advance
by PFPC Trust and the Manager and will be borne by the Fund.
(d) Utilize a form of encryption that is generally available to the
public in the U.S. for standard Internet browsers and establish,
monitor and verify firewalls and other security features
(commercially reasonable for this type of information and these
30
types of users) and exercise commercially reasonable efforts to
attempt to maintain the security and integrity of the Site; and
(e) Monitor the telephone lines involved in providing the Services and
inform the Fund promptly of any malfunctions or service
interruptions.
2. DUTIES OF THE FUND AND THE USERS. The Fund and the Users (to the extent
applicable) will:
(a) Provide and maintain a web browser supporting Secure Sockets Layer
128-bit encryption; and
(b) Keep logon IDs and passwords confidential and notify PFPC Trust
immediately in the event that a logon ID or password is lost, stolen
or if you have reason to believe that the logon ID and password are
being used by an unauthorized person.
3. STANDARD OF CARE; LIMITATIONS OF LIABILITY.
(a) Notwithstanding anything to the contrary contained in this Exhibit
or any other part of the Agreement, PFPC Trust shall be liable for
direct damages incurred by the Fund which arise out of PFPC's
Trust's failure to perform its duties and obligations in accordance
with this Exhibit only to the extent such failure constitutes
willful misfeasance, fraud, bad faith, negligence or reckless
disregard.
(b) The Fund acknowledges that the Internet is an "open," publicly
accessible network and not under the control of any party. PFPC
Trust's provision of Services is dependent upon the proper
functioning of the Internet and services provided by
telecommunications carriers, firewall providers, encryption system
developers and others. The Fund agrees that PFPC Trust shall not be
liable in any respect for the actions or omissions of any third
party wrongdoers (i.e., hackers not employed by such party or its
affiliates) or of any third parties involved in the Services and
shall not be liable in any respect for the selection of any such
third party, unless that selection constitutes a breach of PFPC
Trust's standard of care above.
(c) Without limiting the generality of the foregoing or any other
provisions of this Exhibit or the Agreement, PFPC Trust shall not be
liable for delays or failures to perform any of the Services or
errors or loss of data occurring by reason of circumstances beyond
such party's control, including acts of civil or military authority,
national emergencies, labor difficulties, fire, flood, catastrophe,
acts of God, insurrections, war, riots or failure of the mails,
transportation, communication or power supply, functions or
malfunctions of the Internet or telecommunications services,
firewalls, encryption systems or security devices caused by any of
the above, or laws or regulations imposed after the date of this
Exhibit.
31
4. MISCELLANEOUS.
In the event of a conflict between specific terms of this Exhibit
and the balance of the Agreement, this Exhibit shall control as to the
Services.
32
EXHIBIT B
DATAPATH(SM) AUTHORIZED PERSONS
The following individuals are authorized to access PFPC DataPath(SM):
NAME COMPANY OR FIRM SIGNATURE
--------------- ---------------------------------------------- ------------------
Xxxx Xxxxxxxxx X.X. Xxxxxx Alternative Asset Management, Inc. __________________
Xxxx Xxxx X.X. Xxxxxx Alternative Asset Management, Inc. __________________
Xxxxxxx Xxxxxx X.X. Xxxxxx Alternative Asset Management, Inc. __________________
Xxxxxxx Xxxxx X.X. Xxxxxx Alternative Asset Management, Inc. __________________
Xxxx Xxxxxxxxx X.X. Xxxxxx Alternative Asset Management, Inc. __________________
Xxxxxxx N'Dia X.X. Xxxxxx Alternative Asset Management, Inc. __________________
Yasmijn Salim X.X. Xxxxxx Alternative Asset Management, Inc. __________________
Xxx XxXxxxx X.X. Xxxxxx Alternative Asset Management, Inc. __________________
Xxxxx XxXxxxx X.X. Xxxxxx Alternative Asset Management, Inc. __________________
Xxxxxxx Xxxxxxx X.X. Xxxxxx Alternative Asset Management, Inc. __________________
Lynn Ma X.X. Xxxxxx Alternative Asset Management, Inc. __________________
33
