Exhibit (j)(i)
FORM OF CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of ___________, 2005, by and among each of the
entities listed on Schedule A, attached hereto and made a part hereof as may be
amended from time to time (each a "Fund" and collectively, the "Funds") and PFPC
INC., a Massachusetts corporation ("PFPC").
W I T N E S S E T H:
WHEREAS, the Funds are registered as a closed-end, non-diversified
management investment companies under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Funds wish to retain PFPC Trust to provide custodian
services, and PFPC Trust wishes to furnish custodian services, either directly
or through an affiliate or affiliates, as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(c) "AUTHORIZED PERSON" means any officer of a Fund and any other
person authorized by the Fund to give Oral or Written Instructions
on behalf of the Funds. An Authorized Person's scope of authority
may be limited by setting forth such limitation in a written
document signed by both parties hereto.
(d) "BOOK-ENTRY SYSTEM" means the Federal Reserve Treasury book-entry
system for United States and federal agency securities, its
successor or successors, and its nominee or nominees and any
book-entry system registered with the SEC under the 1934 Act.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC Trust
from an Authorized Person or from a person reasonably believed by
PFPC Trust to be an Authorized Person. PFPC Trust may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via electronic
mail as Oral Instructions.
(g) "PFPC TRUST" means PFPC Trust Company or a subsidiary or affiliate
of PFPC Trust Company.
(h) "SEC" means the Securities and Exchange Commission.
(i) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act, the 1940 Act
and the CEA.
(j) "PROPERTY" means:
(i) any and all securities and other investment items which
the Funds 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 Funds;
(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
Funds, which are received by PFPC Trust from time to time,
from or on behalf of the Funds.
(k) "UNITS" mean the units of beneficial interest of any series or
class of the Funds.
(k) "WRITTEN INSTRUCTIONS" mean (i) written instructions signed by two
Authorized
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Persons (or persons reasonably believed by PFPC Trust to be
Authorized Persons) and received by PFPC Trust or (ii) trade
instructions transmitted by means of an electronic transaction
reporting system which requires the use of a password or other
authorized identifier in order to gain access. The instructions
may be delivered electronically or by hand, mail or facsimile
sending device.
2. APPOINTMENT. The Funds hereby appoint PFPC Trust to provide custodian
services to the Funds as set forth herein, on behalf of each of its
investment portfolios (each, a "Portfolio"), and PFPC Trust accepts such
appointment and agrees to furnish such services.
3. COMPLIANCE WITH LAWS.
PFPC Trust undertakes to 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
Funds or any other entity.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall act
only upon Oral Instructions or Written Instructions.
(b) PFPC Trust shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives pursuant to this Agreement. PFPC
Trust may assume that any Oral Instructions or Written
Instructions received hereunder are not in any way inconsistent
with the provisions of organizational documents of the Funds or of
any vote, resolution or proceeding of the Funds' directors or of
the Funds'
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members, unless and until PFPC Trust receives Written Instructions
to the contrary, PFPC Trust has actual knowledge to the contrary,
or such Oral or Written Instructions are outside the scope of the
authority of the Authorized Person giving the instructions and the
Funds have previously given PFPC Trust written notice of the
relevant limitation on such Authorized Person's authority and such
Oral or Written Instructions clearly exceed such Authorized
Person's authority.
(c) The Funds agree to forward to PFPC Trust Written Instructions
confirming Oral Instructions (except where such Oral Instructions
are given by PFPC Trust or its affiliates) so that PFPC Trust
receives the Written Instructions by the close of business on the
same day that such Oral Instructions are received. The fact that
such confirming Written Instructions are not received by PFPC
Trust or differ from the Oral Instructions shall in no way
invalidate the transactions or enforceability of the transactions
authorized by the Oral Instructions or PFPC Trust's ability to
rely upon such Oral Instructions.
5. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUNDS. If PFPC Trust is in doubt as to any action it
should or should not take, PFPC Trust may request directions or
advice, including Oral Instructions or Written Instructions, from
the Funds.
(b) ADVICE OF COUNSEL. If PFPC Trust shall be in doubt as to any
question of law pertaining to any action it should or should not
take, PFPC Trust may request advice from counsel of its own
choosing (who may be counsel for a Fund, a Fund's investment
adviser or PFPC Trust, at the option of PFPC Trust). The cost
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of counsel pursuant to this provision shall be borne by PFPC
unless the counsel is sought from counsel for a Fund or the Fund's
investment adviser.
(c) CONFLICTING ADVICE. In the event of a conflict between directions
or advice or Oral Instructions or Written Instructions PFPC Trust
receives from the Funds, and the advice it receives from counsel,
PFPC Trust shall be entitled to rely upon and follow the advice of
counsel involving an issue of compliance with law or legal
requirements, PFPC Trust shall be entitled to rely upon and follow
the reasonable advice of counsel, provided PFPC Trust has
discussed the matter with the Funds and/or counsel of the Funds'
choosing and the conflict is not resolved.
(d) PROTECTION OF PFPC TRUST. PFPC Trust shall be indemnified by the
Funds 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 Funds or from counsel and which PFPC Trust
believes, in good faith, to be consistent with those directions or
advice or Oral Instructions or Written Instructions. Nothing in
this section shall be construed so as to impose an obligation upon
PFPC Trust (i) to seek such directions or advice or Oral
Instructions or Written Instructions, or (ii) to act in accordance
with such directions or advice or Oral Instructions or Written
Instructions.
6. RECORDS; VISITS. The books and records pertaining to each Fund and any
Portfolio, which are in the possession or under the control of PFPC
Trust, shall be the property of such Fund. Such books and records shall
be prepared and maintained as required by the 1940 Act and other
applicable securities laws, rules and regulations. The Funds and
Authorized Persons shall have access to such books and records at all
times during PFPC
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Trust's normal business hours. Upon the reasonable request of a Fund,
copies of any such books and records shall be provided by PFPC Trust to
such Fund or to an authorized representative of such Fund, at such Fund's
expense.
7. 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 Funds or PFPC Trust, their respective
subsidiaries and affiliated companies; (b) any scientific or technical
information, design, process, procedure, formula, or improvement that is
commercially valuable and secret in the sense that its confidentiality
affords the Funds or PFPC Trust a competitive advantage over its
competitors; (c) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code, object
code, flow charts, databases, inventions, know-how, and trade secrets,
whether or not patentable or copyrightable; and (d) anything designated
as confidential. Notwithstanding the foregoing, information shall not be
Confidential Information and shall not be subject to such confidentiality
obligations if: (a) it is already known to the receiving party at the
time it is obtained; (b) it is or becomes publicly known or available
through no wrongful act of the receiving party; (c) it is rightfully
received from a third party who, to the best of the receiving party's
knowledge, is not under a duty of confidentiality; (d) it is released by
the protected party to a third party without restriction; (e) it is
requested or required to be disclosed by the
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receiving party pursuant to a court order, subpoena, governmental or
regulatory agency request or law (provided the receiving party will
provide the other party written notice of the same, to the extent such
notice is permitted); (f) release of such information by PFPC Trust is
necessary or desirable in connection with the provision of services under
this Agreement; (g) it is 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.
8. COOPERATION WITH ACCOUNTANTS. PFPC Trust shall cooperate with the Funds'
independent public accountants and shall take all reasonable action to
make any requested information available to such accountants as
reasonably requested by the Funds.
9. 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
Funds. Notwithstanding the foregoing, PFPC Trust shall have no right,
title or interest in any of the foregoing (including, without limitation,
any databases) or in any information owned or used by a Fund or any of a
Fund's Affiliates or furnished to PFPC Trust by a Fund or any of a Fund's
Affiliates and all such rights, property and information shall remain
vested in the Fund and/or the Fund's Affiliates. No rights or licenses to
any of the foregoing rights, property or information are implied or
granted under this Agreement.
10. DISASTER RECOVERY. PFPC Trust shall enter into and shall maintain in
effect with appropriate parties one or more agreements making reasonable
provisions for emergency
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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 Funds, take reasonable steps to
minimize service interruptions. PFPC Trust shall have no liability with
respect to the loss of data or service interruptions caused by equipment
failure provided such loss or interruption is not caused by PFPC Trust's
own willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties or obligations under this Agreement.
11. COMPENSATION. As compensation for custody services rendered by PFPC Trust
during the term of this Agreement, the Funds, on behalf of each of the
Portfolios, will pay to PFPC Trust a fee or fees as may be agreed to in
writing from time to time by the Funds and PFPC Trust. The Funds
acknowledge that PFPC Trust may receive float benefits in connection with
maintaining certain accounts required to provide services under this
Agreement.
12. INDEMNIFICATION. The Funds, on behalf of each Portfolio, agree 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 connection with the
provision of services to the Funds. 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, bad faith, gross negligence or reckless disregard in
the performance of PFPC Trust's activities under this
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Agreement. The provisions of this Section 12 shall survive termination of
this Agreement.
13. RESPONSIBILITY OF PFPC TRUST.
(a) PFPC Trust shall be under no duty to take any action hereunder on
behalf of the Funds or any Portfolio except as specifically set
forth herein or as may be specifically agreed to by PFPC Trust and
the Funds in a written amendment hereto. PFPC Trust shall be
obligated to exercise care and diligence in the performance of its
duties hereunder and to act in good faith in performing services
provided for under this Agreement. PFPC Trust shall be liable only
for any damages arising out of PFPC Trust's failure to perform its
duties under this Agreement and only to the extent such damages
arise out of PFPC Trust's willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties under this
Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, (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 caused by any of the foregoing; provided that PFPC Trust has
used reasonable efforts to minimize the impact of any of the
foregoing on its ability to fully perform its obligations
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hereunder; 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 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 14(h)(ii)(B)(4) and
Section 14 (h)(iii)(A) of this Agreement), the Funds 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 Funds shall be responsible for the payment of all
taxes and similar items (including without limitation penalties
and interest related thereto).
(g) The provisions of this Section 13 shall survive termination of
this Agreement.
(h) Notwithstanding anything in this Agreement to the contrary, PFPC
Trust shall have no liability either for any error or omission of
any of its predecessors as
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servicer on behalf of the Funds or for any failure to discover any
such error or omission.
14. DESCRIPTION OF SERVICES.
(a) DELIVERY OF THE PROPERTY. The Funds will deliver or arrange for
delivery to PFPC Trust, all the Property owned by the Portfolios,
including cash received as a result of the distribution of Units,
during the term of this Agreement. PFPC Trust will not be
responsible for any assets until actual receipt.
(b) RECEIPT AND DISBURSEMENT OF MONEY. PFPC Trust, acting upon Written
Instructions, shall open and maintain a separate account for each
separate Portfolio of each Fund (each an "Account") and shall
maintain in the Account of a particular Portfolio all cash and
other assets received from or for each Fund specifically
designated to such Account.
PFPC Trust shall make cash payments from or for the Account of a
Portfolio only for:
(i) purchases of securities in the name of a Portfolio, PFPC
Trust, PFPC Trust's nominee or a sub-custodian or nominee
thereof as provided in sub-section (j) and for which PFPC
Trust has received a copy of the broker's or dealer's
confirmation or payee's invoice, as appropriate;
(ii) purchase or redemption of Units of the Funds delivered to
PFPC Trust;
(iii) payment of, subject to Written Instructions, interest,
taxes (provided that tax which PFPC Trust considers is
required to be deducted or with held "at source" will be
governed by Section 14(h)(iii)(B) of this Agreement),
administration, accounting, distribution, advisory and
management fees which are to be borne by a Portfolio;
(iv) payment to, subject to receipt of Written Instructions,
the Funds' transfer agent, as agent for the members, of an
amount equal to the amount of dividends and distributions
stated in the Written Instructions to be distributed in
cash by the transfer agent to members, or, in lieu of
paying the Funds' transfer agent, PFPC Trust may arrange
for the direct payment
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of cash dividends and distributions to members in
accordance with procedures mutually agreed upon from time
to time by and among the Funds, PFPC Trust and the Funds'
transfer agent;
(v) payments, upon receipt of Written Instructions, in
connection with the conversion, exchange or surrender of
securities owned or subscribed to by the Funds and held by
or delivered to PFPC Trust;
(vi) payments of the amounts of dividends received with respect
to securities sold short;
(vii) payments to PFPC Trust for its services hereunder;
(viii) payments made to a sub-custodian pursuant to provisions in
sub-section (c) of this Section; and
(ix) other payments, upon Written Instructions.
PFPC Trust is hereby authorized to endorse and collect all checks, drafts
or other orders for the payment of money received as custodian for the
Accounts.
(c) RECEIPT OF SECURITIES; SUBCUSTODIANS.
(i) PFPC Trust shall hold all securities received by it for
the Accounts in a separate account that physically
segregates such securities from those of any other
persons, firms or corporations, except for securities held
in a Book-Entry System or through a sub-custodian or
depository. All such securities shall be held or disposed
of only upon Written Instructions or otherwise pursuant to
the terms of this Agreement. PFPC Trust shall have no
power or authority to assign, hypothecate, pledge or
otherwise dispose of any such securities or investment,
except upon the express terms of this Agreement or upon
Written Instructions authorizing the transaction. In no
case may any member of a Fund's directors, or any officer,
employee or agent of a Fund withdraw any securities.
At PFPC Trust's own expense and for its own convenience,
PFPC Trust may enter into sub-custodian agreements with
other banks or trust companies to perform duties described
in this sub-section (c) with respect to domestic assets.
Such bank or trust company shall have aggregate capital,
surplus and undivided profits, according to its last
published report, of at least one million dollars
($1,000,000), if it is a subsidiary or affiliate of PFPC
Trust, or at least twenty million dollars ($20,000,000) if
such bank or trust company is not a subsidiary or
affiliate of PFPC Trust. In addition, such bank or trust
company must be qualified to act as
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custodian and agree to comply with the relevant provisions
of applicable rules and regulations. Any such arrangement
will not be entered into without prior written notice to
the Funds (or as otherwise provided in the 1940 Act).
In addition, PFPC Trust may enter into arrangements with
sub-custodians with respect to services regarding foreign
assets. Any such arrangement will not be entered into
without prior written notice to the Funds (or as otherwise
provided in the 1940 Act).
PFPC Trust shall remain responsible for the acts and
omissions of any sub-custodian chosen by PFPC Trust under
the terms of this sub-section (c) to the same extent that
PFPC Trust is responsible for its own acts and omissions
under this Agreement.
(d) TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of Oral
Instructions or Written Instructions and not otherwise, PFPC Trust
shall:
(i) deliver any securities held for a Portfolio against the
receipt of payment for the sale of such securities or
otherwise in accordance with standard market practice;
(ii) execute and deliver to such persons as may be designated
in such Oral Instructions or Written Instructions,
proxies, consents, authorizations, and any other
instruments whereby the authority of a Portfolio as owner
of any securities may be exercised;
(iii) deliver any securities to the issuer thereof, or its
agent, when such securities are called, redeemed, retired
or otherwise become payable at the option of the holder;
provided that, in any such case, the cash or other
consideration is to be delivered to PFPC Trust;
(iv) deliver any securities held for a Portfolio against
receipt of other securities or cash issued or paid in
connection with the liquidation, reorganization,
refinancing, tender offer, merger, consolidation or
recapitalization of any corporation, or the exercise of
any conversion privilege;
(v) deliver any securities held for a Portfolio to any
protective committee, reorganization committee or other
person in connection with the reorganization, refinancing,
merger, consolidation, recapitalization or sale of assets
of any corporation, 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;
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(vi) make such transfer or exchanges of the assets of the
Portfolios and take such other steps as shall be stated in
said Oral Instructions or Written Instructions to be for
the purpose of effectuating a duly authorized plan of
liquidation, reorganization, merger, consolidation or
recapitalization of the Funds;
(vii) release securities belonging to a Portfolio to any bank or
trust company for the purpose of a pledge or hypothecation
to secure any loan incurred by the Funds on behalf of that
Portfolio; provided, however, that securities shall be
released only upon payment to PFPC Trust of the monies
borrowed, except that in cases where additional collateral
is required to secure a borrowing already made subject to
proper prior authorization, further securities may be
released for that purpose; and repay such loan upon
redelivery to it of the securities pledged or hypothecated
therefor and upon surrender of the note or notes
evidencing the loan;
(viii) release and deliver securities owned by a Portfolio in
connection with any repurchase agreement entered into by
the Funds on behalf of that Portfolio, but only on receipt
of payment therefor; and pay out monies of the Funds in
connection with such repurchase agreements, but only upon
the delivery of the securities;
(ix) release and deliver or exchange securities owned by the
Funds in connection with any conversion of such
securities, pursuant to their terms, into other
securities;
(x) release and deliver securities to a broker in connection
with the broker's custody of margin collateral relating to
futures and options transactions;
(xi) release and deliver securities owned by the Funds for the
purpose of redeeming in kind Units of the Funds upon
delivery thereof to PFPC Trust; and
(xii) release and deliver or exchange securities owned by the
Funds 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(xii).
(e) USE OF BOOK-ENTRY SYSTEM OR OTHER DEPOSITORY. PFPC Trust will
deposit in Book-Entry Systems and other depositories all
securities belonging to the
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Portfolios eligible for deposit therein and will utilize
Book-Entry Systems and other depositories to the extent possible
in connection with settlements of purchases and sales of
securities by the Portfolios, and deliveries and returns of
securities loaned, subject to repurchase agreements or used as
collateral in connection with borrowings. PFPC Trust shall
continue to perform such duties until it receives Written
Instructions or Oral Instructions authorizing contrary actions.
Notwithstanding anything in this Agreement to the contrary, PFPC
Trust's use of a Book-entry System shall comply with the
requirements of Rule 17f-4 under the 1940 Act.
PFPC Trust shall administer a Book-Entry System or other depository as
follows:
(i) With respect to securities of each Portfolio which are
maintained in a Book-Entry System or another depository,
the records of PFPC Trust shall identify by book-entry or
otherwise those securities as belonging to each Portfolio.
(ii) Assets of each Portfolio deposited in a Book-Entry System
or another depository will (to the extent consistent with
applicable law and standard practice) at all times be
segregated from any assets and cash controlled by PFPC
Trust in other than a fiduciary or custodian capacity but
may be commingled with other assets held in such
capacities.
PFPC Trust will provide the Funds with such reports on its own
system of internal control as the Funds may reasonably request
from time to time.
(f) REGISTRATION OF SECURITIES. All securities held for a Portfolio
which are issued or issuable only in bearer form, except such
securities maintained in the Book-Entry System or in another
depository, shall be held by PFPC Trust in bearer form; all other
securities maintained for a Portfolio may be registered in the
name of the Fund on behalf of that Portfolio, PFPC Trust, a
Book-Entry System, another
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depository, a sub-custodian, or any duly appointed nominee of the
Fund, PFPC Trust, Book-Entry System, depository or sub-custodian.
The Funds reserve the right to instruct PFPC Trust as to the
method of registration and safekeeping of the securities of the
Funds. The Funds agree to furnish to PFPC Trust appropriate
instruments to enable PFPC Trust to maintain or deliver in proper
form for transfer, or to register in the name of its nominee or in
the name of the Book-Entry System or in the name of another
appropriate entity, any securities which it may maintain for the
Accounts. With respect to uncertificated securities which are
registered in the name of the Funds or a Portfolio (or a nominee
thereof), PFPC Trust will reflect such securities on its records
based upon the holdings information provided to it by the issuer
of such securities, but notwithstanding anything in this Agreement
to the contrary PFPC Trust shall not be obligated to safekeep such
securities or to perform other duties with respect to such
securities other than to make payment for the purchase of such
securities upon receipt of Oral or Written Instructions, accept in
sale proceeds received by PFPC Trust upon the sale of such
securities of which PFPC Trust is informed pursuant to Oral or
Written Instructions, and accept in other distributions received
by PFPC Trust with respect to such securities or reflect on its
records any reinvested distributions with respect to such
securities of which it is informed by the issuer of the
securities.
(g) VOTING 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 a Portfolio, except in accordance with Written
Instructions. PFPC Trust, directly or through
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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 a Fund on behalf of a Portfolio, then Written Instructions or
Oral Instructions must designate the person who owns such
securities.
(h) TRANSACTIONS NOT REQUIRING INSTRUCTIONS. Notwithstanding anything
in this Agreement requiring instructions in order to take a
particular action, in the absence of a contrary Written
Instruction, PFPC Trust is authorized to take the following
actions without the need for instructions:
(i) COLLECTION OF INCOME AND OTHER PAYMENTS.
(A) collect and receive for the account of each
Portfolio, all income, dividends, distributions,
coupons, option premiums, other payments and similar
items, included or to be included in the Property,
and, in addition, promptly advise each Portfolio of
such receipt and credit such income to each
Portfolio's custodian account;
(B) endorse and deposit for collection, in the name of
the Fund, checks, drafts, or other orders for the
payment of money;
(C) receive and hold for the account of each Portfolio
all securities received as a distribution on the
Portfolio's securities as a result of a stock
dividend, share split-up or reorganization,
recapitalization, readjustment or other rearrangement
or distribution of rights or similar securities
issued with respect to any securities belonging to a
Portfolio and held by PFPC Trust hereunder;
(D) present for payment and collect the amount payable
upon all securities which may mature or be called,
redeemed, retired, or otherwise become payable (on a
mandatory basis) on the date such securities become
payable; and
(E) take any action which may be necessary and proper in
connection with the collection and receipt of such
income and other payments and the endorsement for
collection of checks, drafts, and other
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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 a Portfolio 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 a
Fund on behalf of a Portfolio or PFPC Trust or a
sub-custodian or a nominee of one of the
foregoing, or for exchange of securities for a
different number of bonds, certificates, or
other evidence, representing the same aggregate
face amount or number of units bearing the same
interest rate, maturity date and call
provisions, if any; provided that, in any such
case, the new securities are to be delivered to
PFPC Trust.
(B) PFPC Trust shall:
(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 each Portfolio;
(2) collect interest and cash dividends received,
with notice to a Fund, to the account of each
Portfolio;
(3) hold for the account of each Portfolio 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 a 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 such Fund's name, on behalf of a
Portfolio, on such certificate as the owner of
the securities covered thereby, to the extent it
18
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 any
sum in respect of tax which PFPC Trust considers is
required to be deducted or withheld "at source" by
any relevant law or practice.
(i) SEGREGATED ACCOUNTS.
(i) PFPC Trust shall upon receipt of Written Instructions or
Oral Instructions establish and maintain segregated
accounts on its records for and on behalf of each
Portfolio. Such accounts may be used to transfer cash and
securities, including securities in a Book-Entry System or
other depository:
(A) for the purposes of compliance by the Funds with the
procedures required by a securities or option
exchange, providing such procedures comply with the
1940 Act and any releases of the SEC relating to the
maintenance of segregated accounts by registered
investment companies; and
(B) upon receipt of Written Instructions, for other
purposes.
(ii) PFPC Trust shall arrange for the establishment of XXX
custodian accounts for such members holding Units through
XXX accounts, in accordance with the Funds' prospectuses,
the Internal Revenue Code of 1986, as amended (including
regulations promulgated thereunder), and with such other
procedures as are mutually agreed upon from time to time
by and among the Funds, PFPC Trust and the Funds' transfer
agent.
(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
19
interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase;
(vi) the Portfolio involved; and
(vii) the name of the person from whom or the broker through
whom the purchase was made. PFPC Trust shall upon receipt
of securities purchased by or for a Portfolio (or
otherwise in accordance with standard market practice) pay
out of the monies held for the account of the Portfolio
the total amount payable to the person from whom or the
broker through whom the purchase was made, provided that
the same conforms to the total amount payable as set forth
in such Oral Instructions or Written Instructions.
(k) SALES OF SECURITIES. PFPC Trust shall settle sold securities upon
receipt of Oral Instructions or Written Instructions that specify:
(i) the name of the issuer and the title of the security,
including CUSIP number if applicable;
(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;
(vii) the location to which the security must be delivered and
delivery deadline, if any; and
(viii) the Portfolio involved.
PFPC Trust shall deliver the securities upon receipt of the total amount
payable to the Portfolio upon such sale, provided that the total amount
payable is the same as was set
20
forth in the Oral Instructions or Written Instructions. Notwithstanding
anything to the contrary in this Agreement, PFPC Trust may accept payment
in such form as is consistent with standard 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 Funds the following
reports:
(A) such periodic and special reports as the Funds may
reasonably request;
(B) a monthly statement summarizing all transactions and
entries for the account of each Portfolio, listing
each portfolio security belonging to each Portfolio
(with the corresponding security identification
number) held at the end of such month and stating the
cash balance of each Portfolio at the end of such
month.
(C) the reports required to be furnished to the Funds
pursuant to Rule 17f-4 of the 1940 Act; and
(D) such other information as may be agreed upon from
time to time between the Funds and PFPC Trust.
(ii) PFPC Trust shall transmit promptly to the Funds any proxy
statement, proxy material, notice of a call or conversion
or similar communication received by it as custodian of
the Property. PFPC Trust shall be under no other
obligation to inform the Funds as to such actions or
events. For clarification, upon termination of this
Agreement PFPC Trust shall have no responsibility to
transmit such material or to inform the Funds 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
21
payments or similar items prior to PFPC Trust's actual receipt
thereof, and in addition PFPC Trust may in its sole discretion
credit or debit the assets in an Account on a contractual
settlement date with respect to any sale, exchange or purchase
applicable to the Account; provided that nothing herein or
otherwise shall require PFPC Trust to make any advances or to
credit any amounts until PFPC Trust's actual receipt thereof. If
PFPC Trust credits an Account with respect to (a) income,
dividends, distributions, coupons, option premiums, other payments
or similar items on a contractual payment date or otherwise in
advance of PFPC Trust's actual receipt of the amount due, (b) the
proceeds of any sale or other disposition of assets on the
contractual settlement date or otherwise in advance of PFPC
Trust's actual receipt of the amount due or (c) provisional
crediting of any amounts due, and (i) PFPC Trust is subsequently
unable to collect full and final payment for the amounts so
credited within a reasonable time period using reasonable efforts
or (ii) pursuant to standard industry practice, law or regulation
PFPC Trust is required to repay to a third party such amounts so
credited, or if any Property has been incorrectly credited, PFPC
Trust shall have the absolute right in its sole discretion without
demand to reverse any such credit or payment, to debit or deduct
the amount of such credit or payment from the Account, and to
otherwise pursue recovery of any such amounts so credited from the
Funds. The Funds hereby grant a first priority contractual
possessory security interest in and a right of setoff against the
assets maintained in an Account hereunder in the amount necessary
to secure the return and payment to PFPC Trust of any advance or
credit made by PFPC Trust (including charges related thereto) to
such Account.
22
(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 Funds. If payment is not received by PFPC Trust
within a reasonable time after proper demands have been made, PFPC
Trust shall notify the Funds in writing, including copies of all
demand letters, any written responses and memoranda of all oral
responses and shall await instructions from the Funds. 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 Funds as soon as reasonably practicable
whenever income due on securities is not collected in due course
and shall provide the Funds with periodic status reports of such
income collected after a reasonable time.
(o) FOREIGN EXCHANGE. 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.
15. DURATION AND TERMINATION. This Agreement shall continue until terminated
by the Funds on sixty (60) days' notice prior written notice to the other
party or by PFPC Trust on one year's prior written notice to the other
party. In the event this Agreement is terminated (pending appointment of
a successor to PFPC Trust or vote of the members of the Funds to dissolve
or to function without a custodian of its cash, securities or other
property), PFPC Trust shall not deliver cash, securities or other
property of the Portfolios
23
to a Fund. It may deliver them to a bank or trust company of PFPC Trust's
choice, having aggregate capital, surplus and undivided profits, as shown
by its last published report, of not less than twenty million dollars
($20,000,000), as a custodian for the Funds to be held under terms
similar to those of this Agreement. PFPC Trust shall not be required to
make any delivery or payment of assets upon termination until full
payment shall have been made to PFPC Trust of all of its fees,
compensation, costs and expenses (including without limitation fees and
expenses associated with deconversion or conversion to another service
provider and other trailing expenses incurred by PFPC Trust). PFPC Trust
shall have a first priority contractual possessory security interest in
and shall have a right of setoff against the Property as security for the
payment of such fees, compensation, costs and expenses.
16. NOTICES. Notices shall be addressed (a) if to PFPC Trust at 0000 Xxxxxxx
Xxxxxxxxx, 0xx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attention: Xxx Xxxxxxxx; (b) if to the Funds, at ______________,
Attention: ______________ (or such other address as PFPC Trust may inform
the Funds in writing); or (c) if to neither of the foregoing, at such
other address as shall have been given by like notice to the sender of
any such notice or other communication by the other party. If notice is
sent by confirming electronic delivery, hand or facsimile sending device,
it shall be deemed to have been given immediately. If notice is sent by
first-class mail, it shall be deemed to have been given five days after
it has been mailed. If notice is sent by messenger, it shall be deemed to
have been given on the day it is delivered.
17. 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
24
waiver is sought.
18. DELEGATION; ASSIGNMENT. 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., provided that PFPC Trust gives the Funds 45 days'
prior written notice of such assignment or delegation and such assignment
or delegation is approved in writing by the Funds, such consent not to be
unreasonably withheld or delayed.
19. 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.
20. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties.
(b) NO REPRESENTATIONS OR WARRANTIES. Except as expressly provided in
this Agreement, PFPC Trust hereby disclaims all representations
and warranties, express or implied, made to the Funds 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.
25
(c) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, the Funds agree 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) INFORMATION. The Funds will provide such information and
documentation as PFPC Trust may reasonably request in connection
with services provided by PFPC Trust to the Funds.
(f) 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 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.
26
(i) CUSTOMER IDENTIFICATION PROGRAM NOTICE. To help the U.S.
government fight the funding of terrorism and money laundering
activities, U.S. Federal law requires each financial institution
to obtain, verify, and record certain information that identifies
each person who initially opens an account with that financial
institution on or after October 1, 2003. Consistent with this
requirement, PFPC Trust may request (or may have already
requested) the Fund's name, address and taxpayer identification
number or other government-issued identification number, and, if
such party is a natural person, that party's date of birth. PFPC
Trust may also ask (and may have already asked) for additional
identifying information, and PFPC Trust may take steps (and may
have already taken steps) to verify the authenticity and accuracy
of these data elements.
27
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
--------------------------------
By:
Title:
CSFB Alternative Capital, Inc.
--------------------------------
By:
Title:
CSFB Alternative Capital Multi-Strategy Master
Fund, LLC
--------------------------------
By:
Title:
CSFB Alternative Capital Event Driven Master
Fund, LLC
--------------------------------
By:
Title:
CSFB Alternative Capital Long/Short Equity
Master Fund, LLC
--------------------------------
By:
Title:
CSFB Alternative Capital Relative Value Master
Fund, LLC
--------------------------------
By:
Title:
28
CSFB Alternative Capital Tactical Trading Master
Fund, LLC
--------------------------------
By:
Title:
CSFB Alternative Capital Multi-Strategy Fund,
LLC
--------------------------------
By:
Title:
CSFB Alternative Capital Event Driven Fund, LLC
--------------------------------
By:
Title:
CSFB Alternative Capital Long/Short Equity Fund,
LLC
--------------------------------
By:
Title:
CSFB Alternative Capital Relative Value Fund,
LLC
--------------------------------
By:
Title:
CSFB Alternative Capital Tactical Trading Fund,
LLC
--------------------------------
By:
Title:
CSFB Alternative Capital Multi-Strategy
Institutional Fund, LLC
--------------------------------
29
By:
Title:
CSFB Alternative Capital Event Driven Institutional
Fund, LLC
--------------------------------
By:
Title:
CSFB Alternative Capital Long/Short Equity
Institutional Fund, LLC
--------------------------------
By:
Title:
CSFB Alternative Capital Relative Value
Institutional Fund, LLC
--------------------------------
By:
Title:
CSFB Alternative Capital Tactical Trading
Institutional Fund, LLC
--------------------------------
By:
Title:
CSFB Alternative Capital Multi-Strategy Offshore
Institutional Fund, LDC
--------------------------------
By:
Title:
CSFB Alternative Capital Event Driven Offshore
Institutional Fund, LDC
30
--------------------------------
By:
Title:
CSFB Alternative Capital Long/Short Equity
Offshore Institutional Fund, LDC
--------------------------------
By:
Title:
CSFB Alternative Capital Relative Value Offshore
Institutional Fund, LDC
--------------------------------
By:
Title:
CSFB Alternative Capital Tactical Trading Offshore
Institutional Fund, LDC.
--------------------------------
By:
Title:
[CSFB Alternative Capital Multi-Strategy Private
Fund, LP](1)
--------------------------------
By:
Title:
[CSFB Alternative Capital Long/Short Equity
Private Fund, LP]
--------------------------------
By:
Title:
[CSFB Alternative Capital Multi-Strategy Private
Fund Limited]
--------------------------------
By:
----------
(1) Names of bracketed funds need to be confirmed.
31
Title:
[CSFB Alternative Capital Long/Short Equity
Private Fund Limited]
--------------------------------
By:
Title:
32
SCHEDULE A
MASTER FUNDS
CSFB Alternative Capital Multi-Strategy Master Fund, LLC
CSFB Alternative Capital Event Driven Master Fund, LLC
CSFB Alternative Capital Long/Short Equity Master Fund, LLC
CSFB Alternative Capital Relative Value Master Fund, LLC
CSFB Alternative Capital Tactical Trading Master Fund, LLC
TAXABLE (NON-INSTITUTIONAL) FUNDS
CSFB Alternative Capital Multi-Strategy Fund, LLC
CSFB Alternative Capital Event Driven Fund, LLC
CSFB Alternative Capital Long/Short Equity Fund, LLC
CSFB Alternative Capital Relative Value Fund, LLC
CSFB Alternative Capital Tactical Trading Fund, LLC
TAX EXEMPT (INSTITUTIONAL) FUNDS
CSFB Alternative Capital Multi-Strategy Institutional Fund, LLC
CSFB Alternative Capital Event Driven Institutional Fund, LLC
CSFB Alternative Capital Long/Short Equity Institutional Fund, LLC
CSFB Alternative Capital Relative Value Institutional Fund, LLC
CSFB Alternative Capital Tactical Trading Institutional Fund, LLC
OFFSHORE (CAYMAN) UBTI BLOCKER FUNDS
CSFB Alternative Capital Multi-Strategy Offshore Institutional Fund, LDC
CSFB Alternative Capital Event Driven Offshore Institutional Fund, LDC
CSFB Alternative Capital Long/Short Equity Offshore Institutional Fund, LDC
CSFB Alternative Capital Relative Value Offshore Institutional Fund, LDC
CSFB Alternative Capital Tactical Trading Offshore Institutional Fund, LDC.
ONSHORE UNREGISTERED FEEDER FUNDS
[CSFB Alternative Capital Multi-Strategy Private Fund, LP](2)
[CSFB Alternative Capital Long/Short Equity Private Fund, LP]
OFFSHORE UNREGISTERED FEEDER FUNDS
----------
(2) Names of bracketed funds need to be confirmed.
33
[CSFB Alternative Capital Multi-Strategy Private Fund Limited]
[CSFB Alternative Capital Long/Short Equity Private Fund Limited]
34
