Exhibit (j)
FORM OF CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made and entered into as of [ ], 2005 by and between
SEI PRIVATE TRUST COMPANY, a savings association supervised by the Office
of Thrift Supervision ("SEI Trust"), and XXXXXXX XXXXX HEDGE FUND PARTNERS
REGISTERED MASTER FUND, LLC, a Delaware limited liability company (the
"Master Fund").
W I T N E S S E T H:
WHEREAS, the Master Fund 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 Master Fund wishes to retain SEI Trust to provide
custodian services, and SEI 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.
(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 person authorized by the Master
Fund to give Written Instructions on behalf of the Master Fund.
An Authorized Person's scope of authority may be limited by the
Master Fund setting forth such limitation in a written document
by the Master Fund.
(d) "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.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "Interests" mean the limited liability company interests of the
Master Fund.
(g) "Written Instructions" mean (i) written instructions delivered by
hand, mail or facsimile sending device and signed by two
Authorized Persons and received by SEI 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.
(h) "SEI Trust" means SEI Private Trust Company or a subsidiary or
affiliate of SEI Private Trust Company.
(i) "SEC" means the Securities and Exchange Commission.
(j) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act
and the CEA.
(k) "Property" means:
(i) any and all securities and other investment items which the
Master Fund may from time to time deposit, or cause to be
deposited, with SEI Trust or which SEI Trust may from time
to time hold for the Master Fund;
(ii) all income in respect of any of such securities or other
investment items;
(iii) all proceeds of the sale of any of such securities or
investment items; and
(iv) all proceeds of the sale of securities issued by the Master
Fund, which are received by SEI Trust from time to time,
from or on behalf of the Master Fund.
2. APPOINTMENT. The Master Fund hereby appoints SEI Trust to provide
custodian services to the Master Fund, and SEI Trust accepts such
appointment and agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Master Fund has provided or, where
applicable, will provide SEI Trust with the following:
(a) at SEI Trust's request, certified or authenticated copies of the
resolutions of the Master Fund's Board of Managers, approving the
appointment of SEI Trust or its affiliates to provide services;
(b) a copy of the Master Fund's most recent effective registration
statement;
(c) a copy of the Master Fund's advisory and, if applicable,
sub-advisory agreements;
(d) a copy of the placement agency agreements, if any, with respect
to each class of Interests;
(e) a copy of the Master Fund's administration agreement;
(f) copies of any distribution and/or member servicing plans and
agreements made in respect of the Master Fund or a class thereof;
and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. COMPLIANCE WITH LAWS. SEI Trust undertakes to comply with applicable
requirements of the Securities Laws and laws, rules and regulations of
governmental authorities having jurisdiction with respect to the duties to
be performed by SEI Trust hereunder. Except as specifically set forth in
this Agreement herein, SEI Trust assumes no responsibility for compliance
with such laws by the Master Fund or any other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, SEI Trust shall act
only upon Written Instructions.
(b) SEI Trust shall be entitled to rely upon any Written Instruction
it receives from an Authorized Person (or from a person
reasonably believed by SEI Trust to be an Authorized Person)
pursuant to this Agreement. SEI Trust may assume that any Written
Instructions received hereunder are not in any way inconsistent
with the provisions of organizational documents of the Master
Fund or of any vote, resolution or proceeding of the Master
Fund's Board of Managers or of the Master Fund's members, unless
and until SEI Trust receives Written Instructions to the
contrary, SEI has actual knowledge to the contrary or such
Written Instructions are not the type of Written Instructions
that an Authorized Person is authorized to give and the Master
Fund has given SEI written notice of the relevant limitation on
the types of Written Instructions that such Authorized is
authorized to give and such Written Instructions are clearly not
with such authorized types.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE MASTER FUND. If SEI Trust is in doubt as to any
action it should or should not take, SEI Trust may request
directions or advice, including Written Instructions, from the
Master Fund.
(b) ADVICE OF COUNSEL. If SEI Trust shall be in doubt as to any
question of law pertaining to any action it should or should not
take, SEI Trust may request advice at its own cost from counsel
selected by SEI Trust and reasonably acceptable to the Master
Fund (who may be counsel for the Master Fund, the Master Fund's
investment adviser or SEI Trust, at the option of SEI Trust).
(c) CONFLICTING ADVICE. In the event of a conflict between directions
or advice or Written Instructions SEI Trust receives from the
Master Fund, and the advice it receives from counsel, SEI Trust
shall be entitled to rely upon and follow the advice of counsel.
SEI Trust shall refrain from acting in the event of a conflict,
unless counsel advises SEI Trust that failure to take action is
likely to result in additional loss, liability or expense. In the
event SEI Trust relies on the advice of counsel, SEI Trust
remains liable for any action or omission on the part of SEI
Trust that constitutes willful misfeasance, bad faith, gross
negligence or reckless disregard by SEI Trust of any duties,
obligations or responsibilities set forth in this Agreement.
(d) SEI Trust will promptly notify the Master Fund of a determination
of counsel pursuant to clause (b) or (c) of this Section 6 in
writing and provide the Master Fund with a written explanation of
the basis for such determination. In the event SEI Trust does not
take an action required under this Agreement because such action
would not be in compliance with applicable law, the parties shall
agree on a reasonable accommodation or solution that will provide
the Master Fund to the extent reasonably possible the benefit of
such action in compliance with applicable law; provided, however,
that if after 45 days the parties are not able to reach in good
faith a mutually satisfactory accommodation or solution and as a
result SEI Trust is no longer able to properly perform its duties
hereunder such that is or are individually or in the aggregate
material to this Agreement, the Master Fund shall have the right
to terminate this Agreement on at least 45 days' written notice
to SEI Trust.
(e) PROTECTION OF SEI TRUST. SEI Trust shall be indemnified by the
Master Fund and without liability for any action SEI Trust takes
or does not take in reliance upon directions or advice or Written
Instructions SEI Trust receives from or on behalf of the Master
Fund or from counsel and which SEI Trust believes, in good faith,
to be consistent with those directions or advice or Written
Instructions. Nothing in this section shall be construed so as to
impose an obligation upon SEI Trust (i) to seek such directions
or advice or Written Instructions, or (ii) to act in accordance
with such directions or advice or Written Instructions.
7. RECORDS; VISITS. The books and records pertaining to the Master Fund,
which are in the possession or under the control of SEI Trust shall be the
property of the Master Fund. Such books and records shall be prepared and
maintained as required by the 1940 Act (specifically including but not
limited to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder) and
other applicable securities laws, rules and regulations. The Master Fund
and its authorized officers, employees and agents and any other person
authorized by the Master Fund shall have access to such books and records
at all times during SEI Trust's normal business hours. Upon the reasonable
request of the Master Fund, copies of any such books and records shall be
provided by SEI Trust to the Master Fund or to an authorized representative
of the Master Fund, at the Master Fund's expense. No records of the Master
Fund in possession of SEI Trust may be destroyed other than in accordance
with the standard policies and procedures of SEI Trust in effect from time
to time. The Master Fund may from time to time request that SEI Trust
provide the Master Fund with copies of records pertaining to the Master
Fund, and SEI shall comply with such requests, subject to the Master Fund
paying the reasonable costs and expense incurred by SEI Trust in complying
with such requests. In the event of the termination of this agreement, all
books and records maintained pursuant to this Section 7 shall be delivered
in accordance with Section 17 of this Agreement.
8. CONFIDENTIALITY. Each party shall, and shall cause its respective
affiliates and its and their respective officers, directors, trustees,
members, managers or agents to, 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 Master Fund portfolio holdings or
investment processes, 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 Master Fund or
SEI Trust, their respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them; (b) any scientific or
technical information, design, process, procedure, formula, or improvement
that is commercially valuable and secret in the sense that its
confidentiality affords the Master Fund or SEI 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 subject to such confidentiality obligations if it: (a) is
already known to the receiving party at the first time it is obtained
unless such knowledge was confidential when obtained by the receiving
party; (b) is or becomes publicly known or available through no wrongful
act of the receiving party; (c) 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) is released by the protected party to a third party
without restriction; (e) is required to be disclosed by the receiving party
pursuant to a requirement of a court order, subpoena, governmental or
regulatory agency or law (provided the receiving party will provide the
other party written notice of such requirement, to the extent such notice
is permitted); (f) is relevant to the defense of any claim or cause of
action asserted against the receiving party; or (g) has been or is
independently developed or obtained by the receiving party.
9. COOPERATION WITH ACCOUNTANTS. SEI Trust shall cooperate with the Master
Fund's independent public accountants and shall take all reasonable action
to make any requested information available to such accountants as
reasonably requested by the Master Fund.
10. SEI SYSTEM. SEI 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 SEI
Trust in connection with the services provided by SEI Trust to the Master
Fund.
11. DISASTER RECOVERY. SEI Trust shall enter into and shall maintain in
effect with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to the
extent appropriate equipment is available. In the event of equipment
failures, SEI Trust shall, at no additional expense to the Master Fund,
take reasonable steps to minimize service interruptions. SEI 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 SEI Trust's own willful misfeasance, bad faith, gross negligence
or reckless disregard of its duties or obligations under this Agreement.
12. COMPENSATION. As compensation for the services rendered by SEI Trust
under this Agreement, the Master Fund will pay to SEI Trust the fee set
forth in Schedule B hereto. The Master Fund acknowledges that SEI Trust may
receive float benefits in connection with maintaining certain accounts
required to provide services under this Agreement.
13. INDEMNIFICATION. The Master Fund agrees to indemnify and hold harmless
SEI Trust and its affiliates, including their respective officers,
directors, agents and employees, from all taxes, charges, expenses,
assessments, claims and liabilities (including, without limitation,
reasonable 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 SEI
Trust takes in connection with the provision of services to the Master
Fund. Neither SEI Trust, nor any of its affiliates, shall be indemnified
against any liability (or any expenses incident to such liability) caused
by SEI Trust's, its agents' or its affiliates' or their respective
officers, directors, agents and employees own willful misfeasance, bad
faith, gross negligence or reckless disregard in the performance of SEI
Trust's activities under this Agreement. The provisions of this Section 13
shall survive termination of this Agreement.
14. RESPONSIBILITY OF SEI TRUST.
(a) SEI Trust shall be under no duty to take any action hereunder on
behalf of the Master Fund except as specifically set forth herein
or as may be specifically agreed to by SEI Trust and the Master
Fund in a written amendment hereto. SEI Trust shall be obligated
to exercise reasonable care and diligence in the performance of
its duties hereunder and to act in good faith in performing
services provided for under this Agreement. SEI Trust shall be
liable only for any damages arising out of SEI Trust's failure to
perform its duties under this Agreement to the extent such
damages arise out of SEI Trust's willful misfeasance, bad faith,
gross negligence or reckless disregard of its duties under this
Agreement. SEI Trust shall not be relieved of its
responsibilities or liabilities if it engages sub-custodians or
other agents to perform its duties hereunder.
(b) Notwithstanding anything in this Agreement to the contrary, (i)
provided that SEI Trust complies with Section 11, and it has
acted in accordance with the standard of care set forth in clause
(a) of this Section 14, SEI Trust shall not be liable for losses,
delays, failure, errors, interruption or loss of data occurring
directly or indirectly by reason of circumstances beyond its
reasonable control, including without limitation acts of god;
action or inaction of civil or military authority; public enemy;
war; terrorism; riot; fire; flood; sabotage; epidemics; labor
disputes; civil commotion; interruption, loss or malfunction of
utilities, transportation, computer or communications
capabilities; insurrection; elements of nature; or
non-performance by a third party; and (ii) SEI 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 SEI
Trust reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
neither party to this Agreement nor their respective affiliates
nor their respective officers, directors, trustees, members,
managers or agents shall be liable for any consequential, special
or indirect losses or damages in connection with this Agreement
(except for any such losses or damages caused by a failure of
such party or such person to comply with the obligation set forth
in Section 8 hereof), whether or not the likelihood of such
losses or damages was known by SEI Trust or its affiliates.
(d) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
The provisions of this Section 14 shall survive termination of this
Agreement.
15. DESCRIPTION OF SERVICES. SEI Trust shall perform the custodian services
set forth in Schedule A hereto. SEI Trust may sub-contract with third
parties to perform certain of the services to be performed by SEI Trust
hereunder; provided, however, that SEI Trust shall remain responsible to
the Master Fund for the acts and omissions of such other entities as if SEI
Trust had itself performed those acts or omissions. In meeting its duties
hereunder, subject to its obligations under this Agreement, SEI Trust shall
have the general authority to do all acts deemed in SEI Trust's good faith
belief to be necessary and proper to perform its obligations under this
Agreement.
16. DURATION AND TERMINATION. This Agreement shall be in effect through and
including through and including the one-year anniversary of the date of the
initial sale of Interests in the Master Fund, directly or indirectly, to a
party other than Xxxxxxx Xxxxx Hedge Fund Strategies LLC or The Xxxxxxx
Sachs Group, Inc. (the "Initial Term"). After the Initial Term, the term of
this Agreement will automatically renew for additional one-year renewal
terms (a "Renewal Term"; each Renewal Term and the Initial Term, being
referred to herein as a "Term") unless either SEI Trust or the Master Fund
gives written notice to the other party at least 90 days prior to the date
on which the Initial Term or the then-current Renewal Term is scheduled to
expire, that the notifying party has elected to let such Term expire. This
Agreement may be terminated only: (i) by SEI Trust or the Master Fund in
accordance with the provisions of this Section 16; (ii) by SEI Trust on
such date as is specified in written notice given by SEI Trust, in the
event of a breach of one or more provisions of this Agreement, which are
individually or in the aggregate material to this Agreement, in any
material respect by the Master Fund, provided SEI Trust has notified the
Master Fund of the breach at least 90 days prior to the specified date of
termination and the Master Fund has not remedied such breach within 45 days
of the date of such notice is received by the Master Fund; or (iii) by the
Master Fund on such date as is specified in written notice given by the
Master Fund, as applicable, in the event of a breach of one or more
provisions of this Agreement, which are individually or in the aggregate
material to this Agreement, in any material respect by SEI Trust, provided
the Master Fund has notified SEI Trust of the breach at least 90 days prior
to the specified date of termination and SEI Trust has not remedied such
breach within 45 days of the date of such notice is received by SEI Trust.
In addition, this Agreement shall terminate upon the dissolution,
liquidation, winding-up or termination of the Master Fund. SEI Trust shall
not be required to make any delivery or payment of assets upon termination
until full payment shall have been made to SEI Trust of all of its fees,
compensation, costs and expenses then payable under the terms of this
Agreement and SEI Trust's reasonable expenses associated with movement (or
duplication) of records and materials and conversion thereof to a successor
service provider, or to a bank or trust company pending appointment of such
successor. SEI Trust shall have, to the extent permissible under the 1940
Act, a 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.
17. SUCCESSOR CUSTODIAN. If a successor custodian shall be appointed by the
Board of Managers, SEI Trust shall, upon the termination of this Agreement
and at the cost of the Master Fund, deliver to such successor custodian at
the office of SEI Trust, duly endorsed and in the form for transfer, all
securities, funds and other properties then held by it hereunder and shall
transfer to an account of the successor custodian all of the securities of
the Master Fund held in a Book-Entry System. In the event that no Written
Instructions designating a successor custodian shall have been delivered to
SEI Trust on or before the date when any termination of this Agreement
shall become effective, then SEI Trust shall have the right to deliver at
the cost of the Master Fund to a bank or trust company, which is a "bank"
as defined in the 1940 Act, of its own selection, having an aggregate
capital, surplus, and undivided profits, as shown by its last published
report, of not less than $25,000,000, acting as a custodian of the Master
Fund, all securities, funds and other properties held by SEI Trust and all
instruments held by SEI Trust relative thereto and all other property held
by it under this Agreement and to transfer to an account of such successor
custodian all of the securities of the Master Fund held in a Book-Entry
System. SEI Trust agrees to reasonably cooperate with such successor
custodian in connection with the transfer of such securities and
information. Thereafter, such bank or trust company shall be the successor
of SEI Trust under this Agreement, and SEI Trust shall have no further
duties and obligations hereunder, except as otherwise specifically provided
by this Agreement. In the event that securities, funds and other properties
remain in the possession of SEI Trust after the date of termination hereof
owing to failure of the Board of Managers to appoint a successor custodian,
SEI Trust shall be entitled to fair compensation for its services during
such period as SEI Trust retains possession of such securities, funds and
other properties and the provisions of this Agreement relating to the
duties and obligations of SEI Trust shall remain in full force and effect.
The provisions of this Section 17 shall survive any termination of this
Agreement.
18. NOTICES. Notices shall be addressed (a) if to SEI Trust at Xxx Xxxxxxx
Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000, Attention: General Counsel; (b) if
to the Master Fund, c/o Goldman Xxxxx Hedge Fund Strategies LLC, 000 Xx.
Xxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, Attention: General Counsel; 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, 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 had been mailed. If notice is
sent by messenger, it shall be deemed to have been given on the day it was
delivered.
19. AMENDMENTS. This Agreement, or any term hereof, may be changed or
waived only by a written amendment, signed by both parties.
20. ASSIGNMENT. This Agreement may not be assigned by either party without
the written consent of the other party; provided, however, that the Master
Fund agrees not to unreasonably withhold its consent to an assignment by
SEI Trust of all or part of its rights, responsibilities, or duties
hereunder to any subsidiary, parent or affiliate of SEI Trust upon the
provision of prior notice to the Master Fund, provided that no such
assignment will relieve SEI Trust of any of its obligations hereunder.
Notwithstanding the foregoing, SEI Trust shall have the right to assign
this Agreement to its affiliate, SEI Trust Company, a Pennsylvania trust
company ("SEI TC") so long as SEI TC remains an affiliate of SEI Trust at
the time of such assignment; and SEI Trust shall give the Master Fund
written notice of such an assignment reasonably promptly after the
occurrence thereof, but the consent of the Master Fund shall not be
required in connection with such an assignment. Any such assignment by SEI
Trust to any subsidiary, parent or affiliate of SEI Trust will be valid
only so long as the assignee or delegate remains a subsidiary, affiliate or
parent of SEI Trust and in the event of any such assignment, SEI Trust will
remain responsible for the acts of any such entity to whom it makes such
assignment.
21. 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.
22. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
23. 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, SEI Trust hereby disclaims all representations
and warranties, express or implied, made to the Master Fund or
any other person, including, without limitation, any warranties
regarding quality, suitability, merchantability, fitness for a
particular purpose or otherwise (irrespective of any course of
dealing, custom or usage of trade), of any services or any goods
provided incidental to services provided under this Agreement.
SEI Trust disclaims any warranty of title or non-infringement
except as otherwise set forth in this Agreement.
(c) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, if the Master Fund
makes any modifications to its registration statement or adopts
any policies which would affect materially the obligations or
responsibilities of SEI Trust hereunder without the prior written
approval of SEI Trust, which approval shall not be unreasonably
withheld or delayed, SEI Trust shall have the right to terminate
this Agreement upon 30 days' prior written notice, during which
time SEI Trust shall (i) cooperate with the Master Fund in
transitioning the services performed hereunder to a third party,
and (ii) SEI Trust and the Master Fund shall be obligated to
perform their respective obligations under this Agreement, as in
effect prior to the aforesaid modifications by the Master Fund.
(d) CAPTIONS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any
of the provisions hereof or otherwise affect their construction
or effect.
(e) GOVERNING LAW; VENUE. This Agreement shall be deemed to be a
contract made in New York and governed by the laws of the State
of New York, without regard to principles of conflicts of law.
The parties agree that all actions and proceedings arising out
of, under or in connection with this Agreement shall be brought
in and be subject to the jurisdiction of a court of the State of
New York or the United States District Court for the Southern
District of New York located in the City of New York, and the
parties irrevocably submit to the jurisdiction of such courts in
respect of any such action or proceeding and waive to the fullest
extent permitted by law any objection that they may now have or
hereafter have to the laying of venue of any such action or
proceeding in such manner, including any claim that such action
or proceeding has been brought in an inconvenient forum. THE
PARTIES HEREBY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY ACTION, PROCEEDINGS OR LITIGATION ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
(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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
SEI PRIVATE TRUST COMPANY
By:
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Name:
Title:
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XXXXXXX XXXXX HEDGE FUND PARTNERS REGISTERED MASTER FUND, LLC
By:
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Name:
Title:
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SCHEDULE A
DESCRIPTION OF SERVICES.
SEI Trust shall provide the following list of services to the Master Fund:
1. DELIVERY OF THE PROPERTY. The Master Fund will deliver or arrange for
delivery to SEI Trust, all Property intended to be subject to this
Agreement, including cash received as a result of the distribution of
Interests, during the term of this Agreement. SEI Trust will not be
responsible for such property until actual receipt.
2. RECEIPTS AND DISBURSEMENT OF MONEY. SEI Trust, acting upon Written
Instructions, shall open and maintain a physically separate custodial
account or accounts in the United States in the Master Fund's name (the
"Accounts"), subject only to draft or order by SEI Trust acting pursuant to
the terms of this Agreement, and shall hold in such account or accounts,
subject to the provisions hereof all cash received by it from or for the
account of the Master Fund, other than such cash, if any, maintained by the
Master Fund in a custodial account established and used in accordance with
Rule 17f-3 under the 1940 Act. Such funds shall be held by the SEI Trust in
its capacity as custodian to the Master Fund and shall be withdrawable by
the SEI Trust only in that capacity.
SEI Trust shall make cash payments from or for the Accounts of the Master
Fund only for:
(a) purchases of securities in the name of the Master Fund, SEI
Trust, SEI Trust's nominee or a sub-custodian or nominee thereof
as provided in Section 9 of this Schedule A and for which SEI
Trust has received a copy of the broker's or dealer's
confirmation or payee's invoice, as appropriate;
(b) purchase or repurchase of Interests of the Master Fund delivered
to SEI Trust;
(c) payment of, subject to Written Instructions, interest, taxes,
administration, accounting, distribution, advisory, management
fees or similar expenses which are to be borne by the Master
Fund;
(d) payment to, subject to receipt of Written Instructions, the
Master Fund's investor services 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 investor services agent to members, or, in lieu of paying the
Master Fund's investor services agent, SEI 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 Master Fund, SEI Trust and the Master
Fund's investor services agent.
(e) payments, upon receipt of Written Instructions, in connection
with the conversion, exchange or surrender of securities owned or
subscribed to by the Master Fund and held by or delivered to SEI
Trust;
(f) payments made to a sub-custodian pursuant to provisions in
sub-section (c) of this Section 2; and
(g) other payments, upon Written Instructions.
SEI 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.
3. RECEIPT OF SECURITIES; SUB-CUSTODIANS.
(a) SEI 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.
All such securities shall be held or disposed of only upon
Written Instructions of the Master Fund pursuant to the terms of
this Agreement. SEI Trust shall have no power or authority to
assign, hypothecate, pledge or otherwise dispose of any such
securities or investment, except upon the express terms of this
Agreement or upon Written Instructions authorizing the
transaction. In no case may any member of the Master Fund's Board
of Managers, or any officer, employee or agent of the Master Fund
withdraw any securities.
(b) At SEI Trust's own expense and for its own convenience, SEI Trust
may enter into sub-custodian agreements with other banks or trust
companies (provided that such entity shall be qualified to serve
as custodian under the 0000 Xxx) to perform duties described in
this Section 3 with respect to domestic assets. Such bank or
trust company shall have an aggregate capital, surplus and
undivided profits, according to its last published report, of at
least one million dollars ($1,000,000), if it is a subsidiary or
affiliate of SEI Trust, or at least twenty million dollars
($20,000,000) if such bank or trust company is not a subsidiary
or affiliate of SEI Trust. In addition, such bank or trust
company must be qualified to act as custodian and agree to comply
with the relevant provisions of applicable rules and regulations.
Any such arrangement will not be entered into without prior
written notice to the Master Fund.
(c) In addition, SEI Trust may enter into arrangements with
sub-custodians with respect to services regarding foreign assets.
Any such arrangement will be entered into with prior written
notice to the Master Fund.
(d) SEI Trust shall remain responsible for the performance of all of
its duties as described in this Agreement and shall hold the
Master Fund harmless from its own acts or omissions, under the
standards of care provided for herein, and from, and shall be
responsible for, the acts and omissions of any sub-custodian
chosen by SEI Trust under the terms of this Section 3 to the same
extent that SEI Trust is responsible for its own acts and
omissions under this Agreement.
4. TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of Written
Instructions and not otherwise, SEI Trust, directly or through the use of
the Book-Entry System, shall:
(a) deliver any securities held for the Master Fund against the
receipt of payment for the sale of such securities;
(b) execute and deliver to such persons as may be designated in such
Written Instructions, proxies, consents, authorizations, and any
other instruments whereby the authority of the Master Fund as
owner of any securities may be exercised;
(c) 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 SEI
Trust;
(d) deliver any securities held for the Master Fund against receipt
of other securities or cash issued or paid in connection with the
liquidation, reorganization, refinancing, tender offer, merger,
consolidation or recapitalization of any corporation, or the
exercise of any conversion privilege;
(e) deliver any securities held for the Master Fund to any protective
committee, reorganization committee or other person in connection
with the reorganization, refinancing, merger, consolidation,
recapitalization or sale of assets of any corporation, and
receive and hold under the terms of this Agreement such
certificates of deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such delivery;
(f) make such transfer or exchanges of the assets of the Master Fund
and take such other steps as shall be stated in said Written
Instructions to be for the purpose of effectuating a duly
authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Master Fund;
(g) release and deliver or exchange securities owned by the Master
Fund in connection with any conversion of such securities,
pursuant to their terms, into other securities;
(h) release and deliver securities owned by the Master Fund for the
purpose of redeeming in kind Interests of the Master Fund upon
delivery thereof to SEI Trust; and
(i) release and deliver or exchange securities owned by the Master
Fund for other authorized Master Fund purposes.
5. USE OF BOOK-ENTRY SYSTEM. SEI Trust is authorized and instructed, on a
continuous basis, to deposit in the Book-Entry System all securities
belonging to the Master Fund eligible for deposit therein and to utilize
the Book-Entry System to the extent possible in connection with settlements
of purchases and sales of securities by the Master Fund, and deliveries and
returns of securities loaned, subject to repurchase agreements or used as
collateral in connection with borrowings. SEI Trust shall continue to
perform such duties until it receives Written Instructions authorizing
contrary actions.
SEI Trust shall administer the Book-Entry System as follows:
(a) With respect to securities of the Master Fund which are
maintained in the Book-Entry System, the records of SEI Trust
shall identify by Book-Entry or otherwise those securities
belonging to the Master Fund.
(b) To the extent permitted by applicable law, assets of the Master
Fund deposited in the Book-Entry System will at all times be
segregated from any assets and cash controlled by SEI Trust in
other than a fiduciary or custodian capacity but may be
commingled with other assets held in such capacities.
SEI Trust will provide the Master Fund with such reports on its own system
of internal control as the Master Fund may reasonably request from time to
time.
6. REGISTRATION OF SECURITIES. All Securities held for the Master Fund
which are issued or issuable only in bearer form, except such securities
held in the Book-Entry System, shall be held by SEI Trust in bearer form;
all other securities held for the Master Fund may be registered in the name
of the Master Fund, SEI Trust, the Book-Entry System, a sub-custodian, or
any duly appointed nominee of the Master Fund, SEI Trust, Book-Entry System
or sub-custodian. The Master Fund reserves the right to instruct SEI Trust
as to the method of registration and safekeeping of the securities of the
Master Fund. The Master Fund agrees to furnish to SEI Trust appropriate
instruments to enable SEI Trust to hold or deliver in proper form for
transfer, or to register in the name of its nominee or in the name of the
Book-Entry System or in the name of another appropriate entity, any
securities which it may hold for the Accounts and which may from time to
time be registered in the name of the Master Fund.
7. VOTING AND OTHER ACTION. Neither SEI Trust nor its nominee shall vote
any of the securities held pursuant to this Agreement by or for the account
of the Master Fund, except in accordance with Written Instructions. SEI
Trust, directly or through the use of the Book-Entry System, shall execute
in blank and promptly deliver all notices, proxies and proxy soliciting
materials received by SEI Trust as custodian of the Property to the
registered holder of such securities. If the registered holder is not the
Master Fund, then Written Instructions must designate the person who owns
such securities.
8. TRANSACTIONS NOT REQUIRING INSTRUCTIONS. In the absence of contrary
Written Instructions, SEI Trust is authorized to take the following
actions:
(a) COLLECTION OF INCOME AND OTHER PAYMENTS.
(i) collect and receive for the account of the Master Fund, all
income, dividends, distributions, coupons, option premiums,
other payments and similar items, included or to be included
in the Property, and, in addition, promptly advise the
Master Fund of such receipt and credit such income, as
collected, to the Master Fund's custodian account;
(ii) endorse and deposit for collection, in the name of the
Master Fund, checks, drafts, or other orders for the payment
of money;
(iii) receive and hold for the account of the Master Fund all
securities received as a distribution on the Master Fund's
securities as a result of a stock dividend, share split-up
or reorganization, recapitalization, readjustment or other
rearrangement or distribution of rights or similar
securities issued with respect to any securities belonging
to the Master Fund and held by SEI Trust hereunder;
(iv) present for payment and collect the amount payable upon all
securities which may mature or be, on a mandatory basis,
called, redeemed, or retired, or otherwise become payable on
the date such securities become payable; and
(v) 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.
(b) MISCELLANEOUS TRANSACTIONS.
(i) SEI Trust is authorized to deliver or cause to be delivered
Property against payment or other consideration or written
receipt therefor in the following cases:
(a) for examination by a broker or dealer selling for the
account of the Master Fund in accordance with street
delivery custom;
(b) for the exchange of interim receipts or temporary
securities for definitive securities; and
(c) for transfer of securities into the name of the Master
Fund or SEI 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 that, in any such case, the new securities are
to be delivered to SEI Trust.
(ii) unless and until SEI Trust receives Written Instructions to
the contrary, SEI Trust shall:
(a) 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 Master Fund;
(b) collect interest and cash dividends received, with
notice to the Master Fund, to the account of the Master
Fund;
(c) hold for the account of the Master Fund all stock
dividends, rights and similar securities issued with
respect to any securities held by SEI Trust; and
(d) execute as agent on behalf of the Master Fund 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
Master Fund's name on such certificate as the owner of
the securities covered thereby, to the extent it may
lawfully do so.
(iii) SEI Trust shall upon receipt of Written Instructions
establish and maintain segregated accounts on its records
for and on behalf of the Master Fund.
9. PURCHASES OF SECURITIES. SEI Trust shall settle purchased securities
upon receipt of Written Instructions that specify:
(a) the name of the issuer and the title of the securities, including
CUSIP number if applicable;
(b) the number of shares or the principal amount purchased and
accrued interest, if any;
(c) the date of purchase and settlement;
(d) the purchase price per unit;
(e) the total amount payable upon such purchase;
(f) the name of the person from whom or the broker through whom the
purchase was made. SEI Trust shall upon receipt of securities
purchased by or for the Master Fund pay out of the moneys held
for the account of the Master Fund the total amount payable to
the person from whom or the broker through whom the purchase was
made, provided that the same conforms to the total amount payable
as set forth in such Written Instructions.
10. SALES OF SECURITIES. SEI Trust shall settle sold securities upon
receipt of Written Instructions that specify:
(a) the name of the issuer and the title of the security, including
CUSIP number if applicable;
(b) the number of shares or principal amount sold, and accrued
interest, if any;
(c) the date of trade and settlement;
(c) the sale price per unit;
(d) the total amount payable to the Master Fund upon such sale;
(e) the name of the broker through whom or the person to whom the
sale was made;
(f) the location to which the security must be delivered and delivery
deadline, if any; and
SEI Trust shall deliver the securities upon receipt of the total amount
payable to the Master Fund upon such sale, provided that the total amount
payable is the same as was set forth in Written Instructions.
Notwithstanding the other provisions thereof, SEI Trust may accept payment
and deliver securities and arrange for payment in accordance with the
customs prevailing among dealers in securities. In the event SEI Trust does
not receive all the necessary information to settle sold securities in
accordance with this Section 10, the Master Fund shall take any reasonable
steps, requested by SEI Trust, to obtain the required information and
forward it to SEI Trust in a timely manner.
11. REPORTS; PROXY MATERIALS.
(a) SEI Trust shall furnish to the Master Fund the following reports:
(1) such periodic and special reports as the Master Fund may
reasonably request;
(2) a monthly statement summarizing all transactions and entries
for the account of the Master Fund, listing each portfolio
security belonging to the Master Fund 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 Master
Fund including disbursements;
(3) the reports required to be furnished to the Master Fund
pursuant to Rule 17f-4 of the 1940 Act; and (4) such other
information as may be agreed upon from time to time between
the Master Fund and SEI Trust.
(b) SEI Trust shall transmit promptly to the Master Fund any proxy
statement, proxy material, notice of a call or conversion or
similar communication received by it as custodian of the
Property. SEI Trust shall be under no other obligation to inform
the Master Fund as to such actions or events. For clarification,
upon termination of this Agreement, SEI Trust shall have no
responsibility to transmit such material or to inform the Master
Fund or any other person of such actions or events.
12. CREDITING OF ACCOUNTS. If SEI 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 SEI 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 SEI Trust's actual
receipt of the amount due or (c) provisional crediting of any amounts due,
and (i) SEI 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 SEI Trust is required to repay to a third party such amounts so
credited, or if any Property has been incorrectly credited, subject to the
standard of care set out in Section 14 of the Agreement, SEI 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 Master Fund. Nothing herein or otherwise shall
require SEI Trust to make any advances or to credit any amounts until SEI
Trust's actual receipt thereof. The Master Fund hereby grants 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 SEI Trust of any advance or
credit made by SEI Trust (including reasonable charges related thereto) to
such Account.
13. 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 SEI Trust) shall be at the sole risk of the Master Fund. If
payment is not received by SEI Trust within a reasonable time after proper
demands have been made, SEI Trust shall notify the Master Fund in writing,
including copies of all demand letters, any written responses and memoranda
of all oral responses and shall await instructions from the Master Fund.
SEI Trust shall not be obliged to take legal action for collection unless
and until reasonably indemnified to its satisfaction. SEI Trust shall also
notify the Master Fund as soon as reasonably practicable whenever income
due on securities is not collected in due course and shall provide the
Master Fund with periodic status reports of such income collected after a
reasonable time.
SCHEDULE B
FEES
The Master Fund shall pay SEI Trust compensation at the annual rate of
0.01% of the net assets of the Master Fund on the first $1 billion of such
net assets, and 0.005% of the net assets of the Master Fund in excess of $1
billion dollars. Such compensation shall be calculated and accrued monthly,
and paid to SEI Trust quarterly, within 10 business days of quarter-end.
If this Agreement shall become effective subsequent to the first day of a
month or terminates before the last day of a month, SEI Trust's
compensation for that part of the month in which this Agreement is in
effect shall be prorated in a manner consistent with the calculation of the
fees as set forth above.
