Exhibit (j)
FORM OF CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of May 31, 2001 by and between PFPC TRUST
COMPANY, a limited purpose trust company incorporated under the laws of Delaware
("PFPC Trust"), and ALYESKA FUND, L.L.C. a Delaware limited liability company
(the "Company").
W I T N E S S E T H:
WHEREAS, the Company is registered as a closed-end, non-diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Company wishes 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 the Company and any other
person duly authorized by the Company's Board of Managers to give Oral
Instructions and Written Instructions on behalf of the Company and
listed on the Authorized Persons Appendix attached hereto and made a
part
hereof or any amendment thereto as may be received by PFPC Trust. An
Authorized Person's scope of authority may be limited by the Company
by setting forth such limitation in the Authorized Persons Appendix.
(d) "Board of Managers" and "Members" shall have the same meanings as set
forth in the Company's Limited Liability Company Agreement.
(e) "Book-Entry System" means 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
maintained by an exchange registered with the SEC under the 1934 Act.
(f) "CEA" means the Commodities Exchange Act, as amended.
(g) "Foreign Custody Manager" means PFPC Trust or other entity appointed
by the Company's Board of Managers to select and monitor the Company's
foreign sub-custodians and securities depositories.
(h) "Interests" mean membership interests in the Company.
(i) "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.
(j) "PFPC Trust" means PFPC Trust Company, or a subsidiary or affiliate of
PFPC Trust Company.
(k) "SEC" means the Securities and Exchange Commission.
(l) "Securities" means Securities (including, without limitation,
equities, debt obligations, options, and other "securities" as that
term is defined in Section 2(a)(36) of the 0000 Xxx) and any contracts
for forward or future
-2-
delivery of any security, debt obligation or currency, or commodity,
all manner of derivative instruments and any contracts based on any
index or group of Securities, debt obligations or currencies, or
commodities, and any options thereon, as well as investments in
registered investment companies and private investment funds.
(m) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(n) "Property" means:
(i) any and all Securities and other investment items which the
Company 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 Company;
(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 Company,
which are received by PFPC Trust from time to time, from or on
behalf of the Company.
(o) "Written Instructions" mean written instructions signed by two
Authorized Persons, unless specified otherwise herein, and received by
PFPC Trust. The instructions may be delivered electronically or by
hand, mail, tested telegram, cable, telex or facsimile sending device.
2. Appointment. The Company hereby appoints PFPC Trust to provide custodian
services to the Company, in accordance with the terms set forth in this
Agreement. PFPC Trust accepts such appointment and agrees to furnish such
services.
3
3. Delivery of Documents. The Company has provided or, where applicable, will
provide PFPC Trust with the following:
(a) certified or authenticated copies of the resolutions of the Company's
Board of Managers, approving the appointment of PFPC Trust or its
affiliates to provide services and approving this Agreement;
(b) a copy of the Company's current Form N-2 registration statement;
(c) a copy of the Limited Liability Company Agreement;
(d) a copy of the Company's investment advisory agreement pursuant to
which CIBC Xxxxxxxxxxx Advisers, L.L.C., as Investment Adviser,
provides investment advice to the Company;
(e) a copy of the placement agent agreement with respect to the Company;
(f) a copy of any administration agreements;
(g) copies of any investor servicing agreement; and
(h) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. Compliance with Laws.
PFPC Trust undertakes to comply with the applicable requirements of the
Securities Laws, and any 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 Company.
4
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall act only
upon Oral Instructions and Written Instructions, including standing
Written Instructions related to ongoing instructions received
electronically.
(b) PFPC Trust shall be entitled to rely upon any Oral and Written
Instructions it receives from an Authorized Person (or from a person
reasonably believed by PFPC Trust to be an Authorized Person) pursuant
to this Agreement. PFPC Trust may assume that any Oral or Written
Instructions received hereunder are not in any way inconsistent with
the provisions of organizational documents of the Company or of any
vote, resolution or proceeding of the Company's Board of Managers or
the Company's members, unless and until PFPC Trust receives Written
Instructions to the contrary.
(c) The Company agrees to forward to PFPC Trust Written Instructions
confirming Oral Instructions given on behalf of the Company (except
where such Oral Instructions are given by PFPC Trust or its
affiliates) and shall endeavor to ensure 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 shall in no way
invalidate the transactions or enforceability of the transactions
authorized by the Oral Instructions. Where Oral Instructions or
Written Instructions reasonably appear to have
5
been received from an Authorized Person, PFPC Trust shall incur no
liability to the Company in acting upon such Oral Instructions or
Written Instructions provided that PFPC Trust's actions comply with
the other provisions of this Agreement.
6. Right to Receive Advice.
(a) Advice of the Company. 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
Company.
(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 at its own cost from such counsel of its own
choosing.
(c) Conflicting Advice. In the event of a conflict between directions,
advice or Oral Instructions or Written Instructions PFPC Trust
receives from the Company, and the advice it receives from counsel,
PFPC Trust shall be entitled to rely upon and follow the advice of
counsel. PFPC Trust shall promptly inform the Company of such conflict
and PFPC Trust shall refrain from acting in the event of a conflict
unless counsel advises PFPC Trust that a failure to take action is
likely to result in additional loss, liability or expense. In the
event PFPC Trust relies on the advice of counsel, PFPC Trust remains
liable for any action or omission on the part of PFPC Trust which
constitutes willful misfeasance, bad faith, negligence or reckless
disregard by PFPC Trust of any duties, obligations or responsibilities
set forth in this Agreement.
6
(d) Protection of PFPC Trust. PFPC Trust shall be protected in any action
it takes or does not take in reliance upon directions, advice or Oral
Instructions or Written Instructions it receives from the Company or
(to the extent permitted under clause (c) above) from counsel and
which PFPC Trust believes, in good faith, to be consistent with those
directions, 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, advice or Oral
Instructions or Written Instructions, or (ii) to act in accordance
with such directions, advice or Oral Instructions or Written
Instructions unless, under the terms of other provisions of this
Agreement, the same is a condition of PFPC Trust's properly taking or
not taking such action. Nothing in this subsection shall excuse PFPC
Trust when an action or omission on the part of PFPC Trust constitutes
willful misfeasance, bad faith, negligence or reckless disregard by
PFPC Trust of any duties, obligations or responsibilities set forth in
this Agreement.
7. Records; Visits. The books and records pertaining to the Company, which are
in the possession or under the control of PFPC Trust shall be the property
of the Company. Such books and records shall be prepared and maintained as
required by the 1940 Act and other applicable securities laws, rules and
regulations. The Company and its duly authorized officers, employees and
agents and the staff of the Securities and Exchange Commission shall have
access to such books and records at all times during PFPC Trust's normal
business hours. Upon the reasonable request of the Company, copies of any
such books and records shall be
7
provided by PFPC Trust to the Company or to an Authorized Person, at the
Company's expense. No records will be destroyed without the Company's
written consent.
8. Confidentiality. PFPC Trust agrees to keep confidential all records of the
Company and information relating to the Company and its Members, unless the
release of such records or information is otherwise consented to, in
writing, by the Company. The Company agrees that such consent shall not be
unreasonably withheld and may not be withheld where PFPC Trust may be
exposed to civil or criminal contempt proceedings or when required to
divulge such information or records to duly constituted authorities.
9. Cooperation with Accountants. PFPC Trust shall cooperate with the Company's
independent public accountants and shall take all reasonable action in the
performance of its obligations under this Agreement to assure that the
necessary information is made available to such auditors and accountants
for the expression of their opinion, as required by the Company.
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 use of electronic data processing equipment. In
the event of equipment failures, PFPC Trust shall, at no additional expense
to the Company, 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
8
Trust's own willful misfeasance, bad faith, 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 Company will pay to PFPC Trust a fee
or fees as may be agreed to in writing from time to time by the Company and
PFPC Trust.
12. Indemnification. The Company, agrees to indemnify and hold harmless PFPC
Trust and its affiliates from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation, liabilities arising
under the Securities Laws and any state and foreign Securities and blue sky
laws, and amendments thereto), and expenses, including (without limitation)
reasonable attorneys' fees and disbursements arising directly or indirectly
from any action or omission to act which PFPC Trust takes (i) at the
request or on the direction of or in reliance on the advice of the Company
or (ii) upon Oral Instructions or Written Instructions; provided, however,
neither PFPC Trust, nor any of its affiliates, shall be indemnified against
any liability (or any expenses incident to such liability) arising out of
PFPC Trust's or its affiliates' own willful misfeasance, bad faith,
negligence or reckless disregard of its duties under this Agreement.
13. Responsibility of PFPC Trust.
(a) PFPC Trust shall be under no duty to take any action on behalf of the
Company except as necessary to fulfill its duties and obligations as
specifically set forth herein or as may be specifically agreed to by
PFPC Trust in writing. PFPC Trust shall be obligated to exercise care
and
9
diligence in the performance of its duties hereunder, to act in good
faith and to use its best efforts, within reasonable limits, in
performing services provided for under this Agreement. PFPC Trust
shall be liable 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, bad faith, negligence
or reckless disregard of its duties under this Agreement.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC Trust shall not be liable for
losses beyond its control, provided that PFPC Trust has acted in
accordance with the standard of care set forth above; and (ii) PFPC
Trust shall not be liable for (A) the validity or invalidity or
authority or lack thereof of any Oral Instruction or Written
Instruction, notice or other instrument which conforms to the
applicable requirements of this Agreement, and which PFPC Trust
reasonably believes to be genuine; or (B) subject to section 10,
delays or errors or loss of data occurring by reason of circumstances
beyond PFPC Trust's control, including acts of civil or military
authority, national emergencies, fire, flood, catastrophe, acts of
God, insurrection, war, riots or failure of the mails, transportation,
communication or power supply.
(c) Notwithstanding anything in this Agreement to the contrary, neither
PFPC Trust nor its affiliates shall be liable to the Company for any
consequential, special or indirect losses or damages which the Company
10
may incur or suffer by or as a consequence of PFPC Trust's or its
affiliates' performance of the services provided hereunder, whether or
not the likelihood of such losses or damages was known by PFPC Trust
or its affiliates.
(d) Notwithstanding anything in this Agreement to the contrary, the
Company shall not be liable to PFPC Trust for any consequential,
special or indirect losses or damages which PFPC Trust may incur or
suffer as a consequence of this Agreement, whether or not the
likelihood of such losses or damages was known by the Company.
14. Description of Services.
(a) Delivery of the Property. The Company will deliver or arrange for
delivery to PFPC Trust, all the Property owned by the Company,
including cash received as a result of the purchase of Interests,
during the period that is set forth in 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 separate accounts (each an
"Account") in the Company's name using all cash received from or for
the account of the Company, subject to the terms of this Agreement.
PFPC Trust shall make cash payments from or for the Accounts only for:
(i) purchases of Securities in the name of the Company, PFPC Trust or
PFPC Trust's nominee as provided in sub-section (j) and for which
PFPC Trust has received a copy of (A) the subscription document,
or (B) the broker's or dealer's confirmation, or (C) payee's
invoice, as appropriate;
11
(ii) the repurchase of Interests of the Company;
(iii) payment of, subject to Written Instructions, interest,
taxes, administration, accounting, distribution, advisory,
management fees or similar expenses which are to be borne by
the Company;
(iv) payment to, subject to receipt of Written Instructions, the
Company's administrator, as agent for the Members, of an
amount equal to the amount of any distributions stated in
the Written Instructions to be distributed in cash by the
administrator to Members, or, in lieu of paying the
Company's 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 Company, PFPC Trust and
the Company's administrator.
(v) payments, upon receipt of Written Instructions signed by one
Authorized Person, in connection with the conversion,
exchange or surrender of Securities owned or subscribed to
by the Company and held pursuant to this Agreement or
delivered to PFPC Trust;
(vi) payments of, subject to receipt of Written Instructions
signed by one Authorized Person, the amounts of dividends
received with respect to Securities sold short;
(vii) payments made to a subcustodian pursuant to provisions in
subsection (c) of this Section; and
(viii) payments, upon Written Instructions, made for other proper
Company purposes.
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 Company.
(c) Receipt of Securities; Subcustodians.
(i) PFPC Trust shall hold all Securities received by it for the
Company 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. All such Securities shall be held or disposed of
only upon Written Instructions of the Company 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
12
transaction. In no case may any member of the Company's
Board of Managers, or any officer, employee or agent of the
Company withdraw any Securities.
At PFPC Trust's own expense and for its own convenience,
PFPC Trust as Foreign Custody Manager may enter into
sub-custodian agreements with other United States banks or
trust companies, which are banks as defined by the 1940 Act,
to perform duties described in this sub-section (c). Such
bank or trust company shall have an 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 custodian and agree to comply with
the relevant provisions of the 1940 Act and other applicable
rules and regulations, including but not limited to, if
applicable, standards relating to the custody of foreign
Securities. Any such arrangement will not be entered into
without prior written notice to the Company.
PFPC Trust shall remain responsible for the performance of all of
its duties as described in this Agreement and shall hold the
Company harmless from its own acts or omissions, under the
standards of care provided for herein and from the acts and
omissions of any sub-custodian chosen by PFPC Trust under the
terms of this sub-section (c).
(d) Transactions Requiring Instructions. Upon receipt of Oral
Instructions or Written Instructions and not otherwise, PFPC
Trust, directly or through the use of a Book-Entry System, shall:
(i) deliver any Securities held for the Company against the
receipt of payment for the sale of such Securities;
(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 received
by PFPC Trust as custodian whereby the authority of the
Company as owner of any Securities may be exercised;
13
(iii) deliver any Securities to the issuer thereof, or its agent,
when such Securities are called, redeemed, retired or
otherwise become payable; provided that, in any such case,
the cash or other consideration is to be delivered to PFPC
Trust;
(iv) deliver any Securities held for the Company 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 the Company 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;
(vi) make such transfer or exchanges of the assets of the Company
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 Company;
(vii) release Securities belonging to the Company to any bank or
trust company for the purpose of a pledge or hypothecation
to secure any loan incurred by the Company; 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 the Company in
connection with any repurchase agreement entered into on
behalf of the Company, but only on receipt of payment
therefor; and pay out moneys of the Company in connection
with such repurchase agreements, but only upon the delivery
of the Securities;
(ix) release and deliver or exchange Securities owned by the
Company in connection with any conversion of such
Securities, pursuant to their terms, into other Securities;
14
(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 Company for the
purpose of redeeming in kind Interests of the Company upon
delivery thereof to PFPC Trust; and
(xii) release and deliver or exchange Securities owned by the
Company for other proper Company purposes.
(e) Use of Book-Entry System. PFPC Trust is authorized and instructed
on a continuous basis, to deposit in Book-Entry Systems all
Securities belonging to the Company eligible for deposit therein
and to utilize Book-Entry Systems to the extent possible in
connection with settlements of purchases and sales of Securities
by the Company, 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.
PFPC Trust shall administer the Book-Entry System as follows:
(i) With respect to Securities of the Company which are maintained in
the Book-Entry System, the records of PFPC Trust shall identify
by Book-Entry or otherwise those Securities belonging to the
Company.
(ii) Assets of the Company deposited in the Book-Entry System will 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.
15
PFPC Trust will provide the Company with such reports on its own
system of internal control as the Company may reasonably request
from time to time.
(f) Registration of Securities. All Securities held for the Company which
are issued or issuable only in bearer form, except such Securities
held in the Book-Entry System, shall be held by PFPC Trust in bearer
form; all other Securities held for a Portfolio may be registered in
the name of the Company, PFPC Trust, a Book-Entry System, a
sub-custodian, or any duly appointed nominees of the Company, PFPC
Trust, Book-Entry System or sub-custodian. The Company reserves the
right to instruct PFPC Trust as to the method of registration and
safekeeping of the Securities of the Company. The Company 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 a Book-Entry System, any
Securities which it may hold for the Company and which may from time
to time be registered in the name of the Company.
(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 Company, except in accordance with Written
Instructions. PFPC Trust, directly or through the use of a Book-Entry
System, shall execute in blank and promptly deliver all notices,
proxies and proxy soliciting materials received by PFPC Trust as
custodian to the registered holder of
16
such Securities. If the registered holder is not the Company, 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:
(i) Collection of Income and Other Payments.
(A) collect and receive for the account of the Company, 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
Company of such receipt and credit such income, as
collected, to the Company's custodian account;
(B) endorse and deposit for collection, in the name of the
Company, checks, drafts, or other orders for the payment of
money;
(C) receive and hold for the account of the Company all
Securities received as a distribution on the Company'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 Company 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, or
retired, or otherwise become payable 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.
17
(ii) Miscellaneous Transactions.
(A) 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 Company 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 Company
or PFPC Trust or nominee of either, 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) 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 Company;
(2) collect interest and cash dividends received, with
notice to the Company, for the account of the Company;
(3) hold for the account of the Company all stock
dividends, rights and similar Securities issued with
respect to any Securities held by PFPC Trust; and
(4) execute as agent on behalf of the Company all necessary
ownership certificates 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, inserting the Company's name,
on such certificate as the owner of the Securities
covered thereby, to the extent it may lawfully do so.
18
(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 Company. Such accounts may be used to
transfer cash and Securities, including Securities in a Book-Entry
System:
(A) for the purposes of compliance by the Company with the
procedures required by a securities, futures 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.
(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 Interests 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 Company pay out of the moneys held for
the account of the Company 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;
19
(ii) the number of Interests 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 Company 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 Company 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 hereof, PFPC Trust may accept payment in
such form which is consistent with 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 Company the following reports:
(A) such periodic and special reports as the Company may
reasonably request;
(B) a monthly statement summarizing all transactions and entries
for the account of the Company, listing each portfolio
security belonging to the Company with the adjusted average
cost of each issue and the market value at the end of such
month and stating the cash account of the Company including
disbursements;
(C) the reports required to be furnished to the Company 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 Company and PFPC Trust.
20
(ii) PFPC Trust shall transmit promptly to the Company any proxy
statement, proxy material, notice of a call or conversion, other
corporate action or similar communication received by it as
custodian of the Property. PFPC Trust shall be under no other
obligation to inform the Company as to such actions or events.
(m) Crediting of Accounts. 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 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 Company. Nothing herein or otherwise
shall require PFPC Trust to make any advances or to credit any amounts
until PFPC Trust's actual receipt thereof. The Company hereby grants a
first priority contractual possessory security interest in and a right
of setoff against the assets maintained hereunder in the amount
necessary
21
to secure the return and payment to PFPC Trust of any advance or
credit made by PFPC Trust (including reasonable charges related
thereto).
(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
Company. If payment is not received by PFPC Trust within a reasonable
time after proper demands have been made, PFPC Trust shall notify the
Company in writing, including copies of all demand letters, any
written responses and memoranda of all oral responses and shall await
instructions from the Company. 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 Company as soon as
reasonably practicable whenever income due on Securities is not
collected in due course and shall provide the Company with periodic
status reports of such income collected after a reasonable time.
15. Duration and Termination. This Agreement shall continue until terminated by
either party upon ninety (90) days' prior written notice to the other party
by certified mail with confirmed receipt. In the event this Agreement is
terminated (pending appointment of a successor to PFPC Trust or vote of the
Members of the Company 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 to the Company. It may
deliver them to a bank or trust company of
22
PFPC Trust's choice, having an 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 Company to be held
under terms similar to those of this Agreement.
16. Notices. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable, telex
or facsimile sending device. Notices shall be addressed (a) if to PFPC
Trust at 0000 Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, attention: Xxx Xxxxxxxx (b) if to the Company, at c/o CIBC World
Markets Corp., One World Financial Center, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, XX 00000, Attn: Xxxxxx X. Xxxxxx 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 telegram, cable, telex 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 waiver is sought.
18. Delegation; Assignment. This Agreement and the rights and duties of the
parties herein may not be assigned; provided, however, that PFPC Trust may
assign its rights and delegate its duties hereunder at no additional cost
to the Company to
23
any affiliate of or any majority-owned direct or indirect subsidiary of
PFPC Inc. or of The PNC Financial Services Group, Inc., provided that (i)
PFPC Trust gives the Company sixty (60) days' prior written notice of such
assignment or delegation; (ii) the assignee or delegate agrees to comply
with the relevant provisions of the Securities Laws; and (iii) PFPC Trust
and such assignee or delegate promptly provide such information as the
Company may request, and respond to such questions as the Company may ask,
relative to the assignment or delegation, (including, without limitation)
the capabilities of the assignee or delegate. Except as stated above, this
Agreement may not be assigned or delegated by any party without the written
consent of each party.
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. Further Actions. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
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 and Oral
Instructions.
24
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
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:
--------------------------------
Title:
-----------------------------
ALYESKA FUND, L.L.C.
By: /s/ XXXXXX X. XXXXXX
---------------------------------
Title: Principal Manager
------------------------------
25
AUTHORIZED PERSONS APPENDIX
NAME (Type) SIGNATURE
__________________________________
__________________________________
__________________________________
__________________________________
__________________________________
__________________________________
__________________________________
26
Exhibit (k)(1)
ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT (the "Agreement") is made as of this
31st day of May, 2001, by and between CIBC World Markets Corp. ("CIBC WM") and
Alyeska Fund, L.L.C. (the "Fund").
WHEREAS, CIBC WM is in the business of providing administrative services to
investment partnerships and limited liability companies; and
WHEREAS, the Fund wishes to retain CIBC WM to provide certain
administrative services;
NOW THEREFORE, in consideration of the terms and conditions herein
contained, the parties agree as follows:
1. Appointment of CIBC WM.
(a) The Fund hereby retains CIBC WM to provide and CIBC WM hereby
agrees to provide certain administrative services to the Fund. These
services shall include:
(i) the provision of office space, telephone and utilities;
(ii) the provision of administrative and secretarial, clerical and
other personnel as necessary to provide the services required to be
provided under this Agreement;
(iii) the general supervision of the entities that are retained by the
Fund to provide administrative services and custody services to the Fund;
(iv) the handling of investor inquiries regarding the Fund and
providing investors with information concerning their investment in the
Fund and capital account balances;
(v) monitoring relations and communications between investors and the
Fund;
(vi) assisting in the drafting and updating of disclosure documents
relating to the Fund and assisting in the preparation of offering
materials;
(vii) maintaining and updating investor information, such as change of
address and employment;
(viii) assisting in the preparation and mailing of investor
subscription documents and confirming the receipt of such documents and
investor funds;
-1-
(ix) assisting in the preparation of regulatory filings with the
Securities and Exchange Commission, state securities regulators and other
Federal and state regulatory authorities;
(x) preparing reports to and other informational materials for members
and assisting in the preparation of proxy statements and other member
communications;
(xi) monitoring compliance with regulatory requirements and with the
Fund's investment objective, policies and restrictions as established by
the Board of Managers of the Fund (the "Board");
(xii) reviewing accounting records and financial reports of the Fund,
assisting with the preparation of the financial reports of the Fund and
acting as liaison with the Fund's accounting agent and independent
auditors;
(xiii) assisting in preparation and filing of tax returns;
(xiv) coordinating and organizing meetings of the Board and meetings
of the members of the Fund, in each case when called by such persons;
(xv) preparing materials and reports for use in connection with
meetings of the Board;
(xvi) maintaining and preserving those books and records of the Fund
not maintained by CIBC Xxxxxxxxxxx Advisers, L.L.C., the Fund's investment
adviser (the "Adviser") or the Fund's accounting agent or custodian;
(xvii) reviewing and arranging for payment of the expenses of the
Fund;
(xviii) assisting the Fund in conducting offers to members of the Fund
to repurchase member interests; and
(xix) reviewing and approving all regulatory filings of the Fund
required under applicable law.
(b) Notwithstanding the appointment of CIBC WM to provide administrative
services hereunder, the Board shall remain responsible for supervising and
controlling the management, business and affairs of the Fund.
2. CIBC WM Fee; Expenses.
(a) In consideration for the provision by CIBC WM of its services
hereunder, the Fund will pay CIBC WM a monthly management fee of 0.08333% (1% on
annualized basis) of the Fund's "net assets" (the "CIBC WM Fee"). "Net assets"
shall equal the
-2-
total value of all assets of the Fund, less an amount equal to all accrued
debts, liabilities, and obligations of the Fund calculated before giving effect
to any repurchases of interests.
(b) The CIBC WM Fee will be computed based on the net assets of the Fund as
of the start of business on the first business day of each month, after
adjustment for any subscriptions effective on such date, and will be due and
payable in arrears within five business days after the end of such month. In the
event that the CIBC WM Fee is payable in respect of a partial month, such fee
will be appropriately pro-rated.
(c) CIBC WM is responsible for all costs and expenses associated with the
provision of its services hereunder. The Fund shall pay all other expenses
associated with the conduct of its business.
3. Liability. CIBC WM will not be liable for any error of judgment or
mistake of law or for any loss suffered by the Fund, the Managers serving on the
Board ("Managers") or the Fund's members in connection with the performance of
its duties under this Agreement, except a loss (as to which it will be liable
and will indemnify and hold harmless the Fund) resulting from willful
misfeasance, bad faith or gross negligence on CIBC WM's part (or on the part of
an officer or employee of CIBC WM) in the performance of its duties hereunder or
reckless disregard by it of its duties under this Agreement.
4. Effective Date and Termination. This Agreement shall become effective as
of the date first noted above, and shall remain in effect for an initial term of
two years from the date of its effectiveness. This Agreement may be continued in
effect from year to year after its initial term provided that such continuance
is approved annually by the Board, including the vote of a majority of the
Managers who are not "interested persons" of the Fund, as defined by the
Investment Company Act of 1940 and the rules thereunder (the "1940 Act"). This
Agreement may be terminated by CIBC WM, by the Board or by vote of a majority of
the outstanding voting securities of the Fund at any time, in each case upon not
less than 60 days' prior written notice. This Agreement shall also terminate
automatically in the event of its "assignment," as such term is defined by the
1940 Act.
5. Entire Agreement. This Agreement embodies the entire understanding of
the parties. This Agreement cannot be altered, amended, supplemented, or
abridged, or any provisions waived except by written agreement of the parties.
6. Choice of Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York and the 1940 Act. In the event
the laws of New York conflict with the 1940 Act, the applicable provisions of
the 1940 Act shall control.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
-3-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
CIBC WORLD MARKETS CORP.
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
ALYESKA FUND, L.L.C.
By: /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Principal Manager
-4-
