Exhibit (j)
AMENDED AND RESTATED CUSTODIAN AGREEMENT
THIS AGREEMENT, made as of January 29, 1998 between The Pacific
Corporate Group Private Equity Fund (hereinafter referred to as "the Fund"), and
Citibank, a New York banking corporation having its principal place of business
at 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx (hereinafter referred to as "Citibank").
WITNESSETH
WHEREAS, the Fund is an investment company registered under the
Investment Company Act of 1940, and Citibank is a bank having the qualifications
prescribed by the Act to permit the Fund to place and maintain its securities
and similar investments in the custody of Citibank;
AND WHEREAS, the Fund desires Citibank to act as Custodian of the
assets of the Fund and to hold an administer the cash and securities of the Fund
upon the terms and subject to the conditions of this Agreement;
AND WHEREAS, Citibank is prepared to act as Custodian of the assets of
the Fund and to hold and administer the cash and securities of the Fund upon
such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Fund and Citibank agree as follows:
1. Appointment of Citibank as Custodian of the Assets of the Fund.
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The Fund hereby appoints Citibank to hold in its sole custody all the
cash and securities of the Fund, upon the terms and subject to the conditions
hereafter set forth, and Citibank hereby accepts such appointment upon such
terms and subject to such conditions.
2. Construction of Agreement.
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(1) Any reference in this Agreement to a person or thing in the
singular shall, where the context requires, be construed as a reference to such
persons or things in the plural, and vice versa.
(2) Any reference in this Agreement to a person or thing in the
singular shall, where the context requires, be construed as a reference to the
feminine or neuter gender.
3. Interpretation of Agreement.
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In this Agreement -
(a) the expression "the Board" means the Board of Trustees of the
Fund; and, in the event that as Executive Committee of the Board has been
appointed, any reference to the Board includes a reference to the Executive
Committee;
(b) the expression "capital shares" means shares of the capital stock
of the Fund;
(c) the expression "officers' instruction" means an instruction,
direction or authorization in writing signed in the name of the Fund by any two
of the following persons, namely, Chairman of the Board, the President, any Vice
President, the Secretary or the Treasurer of the Fund, and any one of the
aforesaid persons and any other person duly authorized by the Board to sign
officers' instructions; provided, however that all officers' instructions shall
include the signature of the President of the Fund in the case of (i) a payment
permitted under the terms of paragraphs (d), (e), (f), (g) and (h) of subsection
(2) of Section 4, and (ii) a transfer, exchange or delivery of securities
permitted under the terms of paragraphs (h), (i) and (k) of subsection (1) of
Section 6;
(d) the expression "security" has the same meaning as that given to it
in the Investment Company Act of 1940, as amended;
(e) the expression "the Transfer Agent" means such bank, corporation
or other entity as is for the time being duly appointed by the Fund to act as
transfer agent and dividend disbursing agent for the Fund;
(f) the expression "designated broker" shall mean any brokerage firm
which is stated to be a designated broker in any officers' instruction furnished
by the fund to Citibank from time to time.
4. Receipt and Disbursement of Monies by Citibank.
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(1) Citibank shall open and maintain a separate account or accounts in
the name of the Fund, subject only to draft or order by Citibank acting pursuant
to the provisions of this Agreement. Citibank shall hold in such account or
accounts, subject to the provisions of this Agreement, all cash received by it
from or for the account of the Fund.
(2) Citibank shall make payments of cash received for the account of
the Fund (insofar as cash is available for the purpose) only -
(a) upon the purchase of securities for the account of the Fund and
the delivery of such securities to Citibank, or to any other bank, banking firm
or trust company doing business in the United States and, with concurrence of
the Fund, designated by Citibank as its agent, registered in the name of the
Fund, or in the name of a nominee of Citibank referred to in Subsection (1) of
Section 9 of this Agreement, or in proper form for transfer; provided, however
that the provisions of this paragraph (a) shall be applicable to the purchase by
the Fund through designated brokers.
(b) for payments in connection with the conversion, exchange or
surrender of securities owned or subscribed to by the Fund held by, or to be
delivered to, Citibank;
(c) for expenses of Citibank in handling securities for, or on behalf
of, the Fund, including the amount of stamp or transfer taxes payable by the
Fund in respect of a security transaction, and other similar items connected
with matters falling within the purview of this Agreement, including the
reimbursement of Citibank for its disbursements and out-of-pocket expenses
incurred by Citibank in the performance of its duties under this Agreement;
(d) for the payment of interest, taxes, management or supervisory fees
or operating expenses of the Fund (including, without limitation thereto, fees
for custodian, transfer agency, legal, and auditing services and directors'
compensation), or for the transfer of funds to an account or accounts in the
name of the Fund in a qualified bank or banks for the purpose of paying
operating expenses, provided that such transfer or transfers shall be made only
upon receipt by Citibank of an officers' instruction stating that the account or
accounts is or are, as the case may be, to be used for paying operating expenses
of the Fund and stating that the aggregate amount in all such accounts does not
exceed the amount of the Fund's Fidelity Bond (pursuant to Section 17(g) of the
Investment Company Act of 1940, as amended), covering the officers and employees
authorized to draw on such account or accounts;
(e) for the payment of cash dividends and other distributions to
shareholders of the Fund;
(f) for the purchase of capital shares by the Fund;
(g) for the payment of any principal on any indebtedness of the Fund.
(h) for other proper corporate purposes of the Fund; or
(i) upon the termination of this Agreement as set forth in Section 25
of this Agreement.
(3) Before making any payment under subsection(s) of this Section,
Citibank -
(a) shall, in the case of a payment permitted under the terms of
paragraphs (a), (b), (d) or (g) of subsection (2) of this Section, have received
(and may rely on) an officers' instruction directing such payment and setting
forth the purpose for which such payment is to be made;
(b) shall, in the case of a payment permitted under the terms of
paragraph (e) or paragraph (f) of subsection (2) of this Section, have received
(and may rely on) an officers' instruction specifying that the payment is in
respect of a cash dividend or other distribution to shareholders of the Fund
duly declared by the Board or, as the case may be, is in respect of the purchase
of capital shares by the Fund duly authorized by the Board, and designating the
commercial account or accounts into which the amount of such payments are to be
deposited by Citibank for subsequent withdrawal by the Fund or the Transfer
Agent; and
(c) shall, in the case of a payment for corporate purposes permitted
under the terms of paragraph (1) of subsection (2) of this Section, have
received (and may rely on) a copy of a resolution of the Board signed by an
officer of the Fund (other than the officer certifying such resolution) and
certified by the Secretary or an Assistant Secretary of the Fund under its
corporate seal, specifying the amount of such payment, setting forth the purpose
for which such payment is to be made, declaring such purpose to be a proper
corporate purpose of the Fund, and naming the persons or persons to whom such
payment is to be made.
(4) Citibank shall have no responsibility with respect to supervising
or policing the disbursement of monies paid by Citibank into a commercial
account or accounts pursuant to paragraph (e), or paragraph (f) of subsection
(2) of this Section read with paragraph (b) of subsection (3) of this Section.
(5) No officers' instruction shall be required to be received by
Citibank from the Fund in the case of a payment permitted under paragraph (c) of
subsection (2) of this Section.
(6) Citibank is hereby authorized to endorse and collect all checks,
drafts or other orders for the payment of money received by Citibank for the
account of the Fund.
5. Custody of Securities by Citibank.
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(1) Citibank shall hold in a separate account, and physically
segregated at all times from the accounts of any other persons, firms or
corporations, pursuant to the provisions of this Agreement, all securities
received by it from or for the account of the Fund, except as provided in
subparagraph 9 hereof.
(2) All securities and other property or evidences thereof held by
Citibank under this Section are to be held or disposed of by Citibank for the
Fund pursuant to the provisions of this Agreement, and Citibank shall have no
power or authority to assign, hypothecate, pledge or otherwise dispose of any
such securities and other property or evidences thereof except pursuant to the
directions of the Fund and only for the account of the Fund as set forth in
Section 6 of this Agreement.
(3) Citibank shall use its best efforts to ensure that the specific
securities held by it hereunder are at all times identifiable in its records.
(4) Anything to the contrary in this Section 5 notwithstanding,
Citibank may (i) include any or all of the securities in a system whereby
Citibank files securities by issuer rather than by account, or (ii) subject to
the provisions of Section 17(f) of the Investment Company Act of 1940, as
amended, and any rules which may be promulgated thereunder, utilize the
depository facilities of any system for the central handling of securities
established by a national securities exchange or a national securities
association registered with the Securities and Exchange Commission under the
Securities Act of 1934, as amended, or such other persons as may be permitted by
the Securities and Exchange Commission. Citibank shall be entitled to rely upon
officer's instructions as certification that such filing of securities by issuer
or the utilization of such depository facilities is not in any way inconsistent
with the Fund's charter, By-Laws or with any law, rule or regulation which may
be applicable.
6. Transfer, Exchange, Delivery, etc. of Securities by Citibank.
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(1) Citibank shall have sole power to release or deliver any
securities owned by the Fund and held by Citibank for the account of the Fund
pursuant to the provisions of this Agreement. Citibank agrees to transfer,
exchange or deliver such securities held by it for the account of the Fund only
-
(a) upon sales of such securities for the account of the Fund and
receipt by Citibank of payment therefor or of a check in payment therefor in
such form as it is satisfactory to Citibank;
(b) when such securities are called, redeemed or retired or otherwise
become payable;
(c) for examination by any broker selling any such securities in
accordance with "street delivery" custom;
(d) in exchange for, or upon conversion into, other securities and
cash, pursuant to any plan or merger, consolidation, reorganization,
recapitalization or readjustment, or for deposit with a reorganization committee
or protective committee pursuant to a deposit agreement;
(e) upon conversion of such securities, pursuant to their terms, into
other securities;
(f) upon exercise of subscription, purchase or other similar rights
represented by such securities;
(g) upon surrender of warrants, rights or similar securities in the
exercise of such warrants, rights or similar securities;
(h) as collateral on borrowing effected by the Fund;
(i) as a complete or partial redemption in kind of capital shares;
(j) upon sales of securities for the account of the Fund and receipt
by Citibank of payment therefor, including upon sales by the Fund through
designated brokers of put and/or call options written by persons other than the
Fund, combinations thereof and similar options issued by the Options Clearing
Corporation or any similar clearing corporation, in which event Citibank will
deliver any non-negotiable certificates (against receipt for such certificates)
issued by the Options Clearing Corporation, or any similar clearing corporation;
(k) for other proper corporate purposes of the Fund; or
(l) upon the termination of this Agreement as set forth in Section 25
of this Agreement.
(2) All certificates, evidences of receipt and all securities, cash or
other property receivable in exchange for securities delivered pursuant to the
provisions of this Agreement shall be delivered to Citibank or to its agent as
set forth above.
(3) Except as provided in Section 8 of this Agreement, before making
any transfer, exchange or delivery of securities under subsection (1) of this
Section, Citibank -
(a) shall, in the case of a transfer, exchange or delivery permitted
under the terms of paragraph (a), (b) (except as to securities which are
unconditionally and pursuant to their terms called, redeemed or retired or
otherwise become payable), (c), (d), (e), (f), (g), (h), (i), or (j), of
subsection (1) of this Section, have received (and may rely on) an officers'
instruction directing such transfer, exchange or delivery;
(b) shall in the case of a transfer or delivery permitted under the
terms of paragraph (i) of subsection (1) of this Section, have received (and may
rely on) an officers instruction directing the transfer or delivery of the
securities to be utilized for the redemption of shares, specifying the person or
persons to whom the transfer or delivery is to be made in respect of the
complete or, as the case may be, partial, redemption in kind of capital shares;
and
(c) shall, in the case of a transfer, exchange or delivery permitted
under the terms of paragraph (a) of subsection (1) of this Section, have
received (and may rely on) a copy of a resolution of the Board, signed by an
officer of the Fund (other than the officer certifying such resolution) and
certified by the Secretary or an Assistant Secretary of the Fund, under its
corporate seal, specifying the securities to be transferred, exchanged or
delivered, setting forth the purpose for which such transfer, exchange or
delivery is to be made, declaring such purpose to be a proper corporate purpose
of the Fund, and naming the persons or persons to whom delivery of such
securities shall be made, each of whom shall be stated in such resolution to be
a properly bonded officer or employee of the Fund.
(4) Citibank shall not deliver any of the assets of the Fund against
receipt of cash to any one or more of the directors, officers, employees or
agents of the Fund except as directed by an officers' instruction accompanied by
a resolution of the Board signed, certified and in form and substance similar to
a resolution required pursuant to paragraph (c) of subsection (3) of this
Section.
7. Reorganization, Dissolution etc. of the Fund.
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(1) In the case of any of the following transactions, not in the
ordinary course of business, namely -
(a) the merger or consolidation of the Fund with or into another
investment company; or
(b) the sale by the Fund of all, or substantially all, of its assets
to another investment company; or
(c) the dissolution or liquidation of the Fund and the distribution of
its assets, then in any such case Citibank shall deliver the securities held by
it under this Agreement, and disburse cash, only upon receipt of an officers'
instruction together with advice of counsel satisfactory to Citibank (who may be
counsel for the Fund) to the effect that all necessary corporate action therefor
has been taken or, concurrently with any action by Citibank, will be taken.
(2) In none of the circumstances specified in subsection (1) of this
Section shall Citibank, acting as Custodian under this Agreement, be deemed or
taken to be the agent of the Fund for the purposes of any merger, consolidation,
complete or substantial sale of assets, dissolution, liquidation or other
reorganization.
8. Matters where Citibank is to act without Specific Instructions.
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(1) Unless and until Citibank receives an officers' instruction to the
contrary, Citibank shall, without instructions from the Fund -
(a) present for payment all securities held pursuant to the provisions
of this Agreement, which are unconditionally and, pursuant to their terms,
called, redeemed or retired or otherwise become payable, and all coupons and
other income items held pursuant to the provisions of this Agreement which call
for payment upon presentation, collect and receive payment on any and all other
income items, and hold the cash received by it upon such payment for the account
of the Fund;
(b) receive and hold for the account of the Fund all stock dividends,
rights and similar securities issued with respect to any securities held
pursuant to the provisions of this Agreement;
(c) execute as agent on behalf of the Fund such ownership and other
certificates as may be required by the Internal Revenue Code or the Income Tax
Regulations of the United States Treasury Department or under the laws of any
State now or hereafter in effect in respect of securities held pursuant to the
provisions of this Agreement, inserting the Fund's name on such certificates as
the owner of the securities covered thereby, to the extent it may lawfully do
so; and
(d) exchange interim receipts or temporary securities for definitive
securities.
(2) With respect to securities of foreign issue, while Citibank will
use commercially reasonable efforts to collect any monies which may to its
knowledge become collectible arising from such securities, including dividends,
interest and other income, and to notify the Fund of any call for redemption,
offer of exchange, right of subscription, reorganization or other proceedings
affecting such securities, it is understood that Citibank shall be under no
responsibility for any failure or delay in effecting such collections or giving
such notices, whether or not relevant information is published in any financial
service available to it.
(3) Citibank shall not be under any obligation or duty to take action
to effect collection of any amount, if the securities (domestic or foreign) upon
which such amount is payable are in default and payment is refused after due
demand or presentation. Citibank will, however, notify the Fund in writing of
such default and refusal to pay.
9. Registration of Securities.
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(1) Except as otherwise directed by an officers' instruction, Citibank
shall cause all securities held by it for the account of the Fund pursuant to
the provisions of this Agreement, except such as are in bearer form, to be
registered in the name of the Fund or of a registered nominee of Citibank, which
shall be a registered nominee as defined in the Internal Revenue Code and any
Regulations of the United States Treasury Department issued thereunder, or in
any provision of any subsequent federal law exempting nominee registration from
liability for stock transfer taxes, and shall execute and deliver all such
certificates in connection therewith as may be required by such laws or
regulations or by the laws of any State.
(2) The Fund shall from time to time furnish to Citibank appropriate
instruments to enable Citibank to hold or deliver in proper form for transfer,
or to register in the name of a registered nominee of Citibank, any securities
which Citibank may hold for the account of the Fund pursuant to the provisions
of this Agreement and which may from time to time be registered in the name of
the Fund.
10. Voting of Securities; Proxies.
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(1) Neither Citibank nor any nominee of Citibank shall vote any of the
securities held by Citibank for the account of the Fund pursuant to the
provisions of this Agreement, except in accordance with instructions contained
in an officers' instruction.
(2) Citibank shall deliver, or cause to be executed and delivered, to
the Fund all notices of meetings, proxies and proxy solicitation material which
related to such securities, such proxies to be executed by the registered holder
of such securities (if registered otherwise than in the name of the Fund), but
without indicating the manner in which such proxies are to be voted. The Fund
understands that in regard to any foreign (i.e., non-U.S.) securities, it may be
difficult or impossible to provide the Fund with a proxy in a timely manner, and
the Fund relieves Citibank of such responsibility in such event.
11. Communications regarding Securities.
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In any case where Citibank or its nominee receives any communication
containing financial information or other information of material importance to
security holders in respect of or relating to the securities held by Citibank
for the account of the Fund pursuant to the provisions of this Agreement (other
than notices of meeting, proxies and proxy solicitation material referred to in
Section 10 of this Agreement), Citibank shall forthwith deliver such
communication to the Fund.
12. Certificates in respect of Exempt Transfer.
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Citibank shall execute and deliver such certificates in connection
with securities delivered to it or by it pursuant to any provision of this
Agreement as may be required under the provisions of the Internal Revenue Code
and any Regulations of the United States Treasury Department issued thereunder,
or by the laws of any State, now or hereafter in effect, to exempt from transfer
tax exemptable transfer and/or deliveries of any such securities and to deliver
upon instructions of the Fund such certificates as may be so required by the
laws of foreign jurisdictions.
13. Resolutions and Names of Officers and Persons Authorized to act for
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the Fund.
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(1) The Fund shall furnish to Citibank a certified copy of resolutions
adopted by the Board authorizing the execution, delivery and performance of this
Agreement by the Fund and a copy of each resolution adopted by the Board
designating the persons authorized to sign officers' instructions on behalf of
the Fund, in each case certified by the Secretary or an Assistant Secretary of
the Fund under its corporate seal.
(2) The Fund shall also furnish to Citibank a certificate, similarly
certified and sealed, of the specimen signatures of persons authorized to sign
officers' instructions, the names of its Directors and members of the Executive
Committee of the Board (if any) and the names and titles of its officers and a
similar certification of any changes which may occur from time to time.
(3) In the event that any person named in the most recent
certification furnished to Citibank pursuant to sub-section (1) of this Section
ceases to be an officer of the Fund or as the case may be, another persons
authorized to sign officers' instructions, the Fund will furnish Citibank with
an officers' instruction advising it to that effect. In the absence of such an
officers' instruction Citibank shall be entitled to rely, as aforesaid, upon the
signatures of all officers and other persons named in such mot recent
certification.
14. Care and Diligence of the Bank.
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Citibank represents and warrants that its officers and supervisory
personnel charged with carrying out its functions as Custodian of the assets of
the Fund will exercise the same skill with respect to such assets as they
exercise with respect to the property of Citibank of a similar character.
Citibank shall at all times exercise reasonable care and diligence in the
performance of its functions as custodian of the assets of the Fund.
15. Indemnification, etc.
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(1) The Fund shall fully indemnify and save harmless Citibank and its
nominee from any and all loss, liability or expense, including reasonable
counsel fees, arising out of its actions as Custodian of the assets of the Fund
pursuant to the provisions of this Agreement, other than loss, liability or
expense arising out of Citibank's gross negligence or willful misconduct as
determined by a court of competent jurisdiction.
(2) Citibank agrees that, upon receipt of securities to be held by it
for the account of the Fund pursuant to the provisions of this Agreement, and
upon issuing its non-negotiable advice of receipt therefor, it assumes full
responsibility for exercising the skill, reasonable care and diligence described
in Section 14 of this Agreement with respect to the safekeeping thereof while
such securities are in the actual possession of Citibank, its officers or
employees. Citibank agrees that it will give such securities the same physical
care and safeguards as are afforded similar property owned by it.
16. Reliance of Citibank on Opinions, Instructions, etc.
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(1) Citibank may consult with counsel, who may be counsel for the
Fund, in any case where it appears to Citibank necessary or desirable to do so.
Citibank may rely upon, and shall be protected in acting upon, written advice of
counsel for the Fund or of Citibank's outside general counsel. The Fund shall in
all events bear liability for the fees and disbursements of such counsel.
(2) Citibank may rely and act upon any officers' instruction, or other
instrument or paper believed by Citibank to be genuine and to have been signed
by any person thereunto duly authorized, where such documents are received from
or signed by or on behalf of the Fund or any officer or authorized employee of
the Fund. In any other case, Citibank may rely and act upon any direction,
instruction, certification, authorization or other instrument believed by
Citibank to be genuine or to have been signed by any person thereunto duly
authorized, where Citibank has exercised due care and diligence and has not been
guilty of any misconduct.
17. Responsibility for Compliance with the Fund's Investment Policies, etc
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(1) Citibank shall have no powers or duties with respect to ensuring
compliance by the Fund with any restrictions on the Fund's Investment powers or
policies imposed by law or contained in its Declaration of Trust, By-Laws,
Registration Statements or any amendments thereto or in its prospectus or
elsewhere. The sole responsibility for such compliance shall be borne by the
Fund.
(2) Citibank shall not be under any duty or obligation to ascertain
whether any securities at any time delivered to, or held by, it for the account
of the Fund are such as may properly be held by the Fund under the provisions of
its Declaration of Trust or of its By-Laws, or under any provision of Federal or
State law or statute or of any rule, regulation or order of any Federal or State
agency.
(3) Citibank shall be under no duty or obligation to inquire into and
shall not be liable for
(a) the validity of the issue of any securities purchased by or for
the Fund, the legality of the purchase thereof, or the property of the amount
paid therefor;
(b) the legality of any sale of any securities by or for the Fund or
the propriety of the amount for which the same are sold;
(c) the legality of an issue or sale of any capital shares or the
sufficiency of the amount to be paid thereof;
(d) the legality of the purchase of any capital shares or the
propriety of the amount to be paid therefor;
(e) the legality of the declaration of any dividend by the Fund or the
legality of the issues of any securities held by the Fund as a payment in kind
of such dividend;
(f) any property or monies of the Fund unless and until received by
it, and any such property or monies delivered or paid by it pursuant to terms of
this Agreement.
18. Compensation of Citibank.
------------------------
(1) shall pay Citibank for its services rendered pursuant to the
provisions of this Agreement such compensation as may from time to time be
agreed upon in writing by the Fund and Citibank.
(2) The Fund shall pay or reimburse Citibank from time to time -
(a) for any transfer taxes payable upon transfers or securities made
under any provision of this Agreement; and
(b) for all other necessary and proper disbursements and third party
payments or expenses made or incurred by Citibank or its nominee in the
performance of its functions under any provision of this Agreement.
19. Reports by Citibank.
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Citibank shall, as soon as practicable after the close of each
business day, furnish to the Fund such advice on transactions and entries for
the account of the Fund occurring on that day as may be mutually agreed upon
from time to time between the Fund and Citibank. Citibank shall also furnish to
the Fund, at the end of each month of the Fund's fiscal year, a list of the
securities held by Citibank for the account of the Fund pursuant to the
provisions of this Agreement and, at the expense of the Fund, such additional
lists of securities held by Citibank as may be directed by an officers'
instructions.
20. Preservation of Records by the Bank.
-----------------------------------
The Bank shall preserve, for the periods and in the manner prescribed
by Rule 31a-2 of the Investment Company Act of 1940 (the "1940 Act") any records
as are required to be maintained by the provisions of Rule 31a-1 of the 1940 Act
pertaining to the account or accounts of the Fund maintained by Citibank
pursuant to this Agreement.
21. Access to Securities and Records.
--------------------------------
Citibank agrees to provide access from time to time to the portfolio
securities held by Citibank for the account of the Fund pursuant to the
provisions of this Agreement, or in an account for safekeeping as collateral
under subsection (2) of Section 5 of this Agreement, and to the records
maintained by Citibank in connection therewith, to such of the Fund's authorized
officers, auditors and counsel or members of the staff of the Securities and
Exchange Commission, as the Fund may request in writing upon reasonable notice
for any proper corporate purpose, subject in each case to such physical security
requirements as Citibank may consider necessary or advisable.
22. Communications.
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All communications between the Fund and the Bank shall be addressed as
follows until such time as either party is notified by the other party of a
change in its address for the purpose of this Section, namely
To Fund The Pacific Corporate Group Private Equity Fund
c/o Pacific Corporate Group
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxx - Chief Financial Officer
To Citibank Citibank
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Suite 200
Attn: Xxxxx Xxxxxx or Xxx Xxxx
23. Assignment of Agreement.
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This Agreement may not be assigned by Citibank without the consent of
the Fund, authorized and approved by a resolution of the Board, or by the Fund
without the consent of Citibank.
24. Initial Delivery of Securities by the Fund.
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The Fund will forthwith cause to be delivered to Citibank all of its
portfolio securities and cash.
25. Termination of Agreement.
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(1) This Agreement may be terminated by the Fund, or by Citibank, on
sixty days' written notice, signed by the President or any Vice President of the
Fund or, as the case may be, by the President or any Vice President of Citibank,
and sent by registered mail to Citibank or to the Fund, as the case may require.
Termination of this Agreement by the Fund shall be made only upon authorization
of the Board.
(2) Notwithstanding anything in the foregoing provisions of this
Section, if it appears in the circumstances impracticable to effect the delivery
of cash and other property of the Fund to a successor custodian as contemplated
by Section 26 of this Agreement within the time specified in the notice of
termination as aforesaid, Citibank agrees that the Agreement shall remain in
full force and effect for such reasonable period as may be required to complete
necessary arrangements with the successor custodian or, as the case may be, to
obtain an order from the Securities and Exchange Commission making effective any
post-effective amendment of the Registration Statement of the Fund necessary in
the circumstances.
26. Successor Custodian.
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Upon termination of this Agreement and payment by the Fund of all
proper charges and expenses, Citibank shall deliver at its offices all
securities duly endorsed and in proper form for transfer and all cash and other
property held by it for the Fund under this Agreement to one or more successor
custodians which shall meet the requirements of the 1940 Act, as specified in a
notice of termination or officers' instruction.
27. Amendment of Agreement.
----------------------
This Agreement may only be amended by an instrument in writing signed
by a property authorized officer of the Fund and of Citibank. Amendment of this
Agreement by the Fund shall be made only upon authorization by a resolution of
the Board.
28. Effective date of the Agreement.
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This Agreement shall become effective upon execution.
29. Governing Law.
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This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and their respective seals to be affixed hereto as of the date first
above written by their respective officers hereunto duly authorized.
Accepted by: The Pacific Corporate Accepted by Citibank, N.A.
Group Private Equity Fund
___________________________________ __________________________________
(Signature) (Signature) (Title)
___________________________________ __________________________________
(Signature) (Date)
___________________________________
(Date)
FEE SCHEDULE
THE FEES TO BE CHARGED THE PACIFIC CORPORATE GROUP PRIVATE EQUITY FUND
ARE AS FOLLOWS:
For the initial twelve months the account will be charged an all inclusive fee
of $2,500.00 per month.
For each month following the initial 12 months the account will be charged an
all inclusive fee of $4,000.00.
