BACAP ALTERNATIVE MUTLI-STRATEGY FUND, LLC
FORM OF
CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of [________], 2003 by and between [_____]
("Custodian"), and BACAP ALTERNATIVE MULTI-STRATEGY FUND, LLC, a Delaware
limited liability company (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as a closed-end, non-diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Fund wishes to retain Custodian to provide custodian
services, and Custodian 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 Fund and any other
person authorized by the Fund to give Oral or Written Instructions
on behalf of the Fund. An Authorized Person's scope of authority may
be limited by setting forth such limitation in a written document
signed by both parties hereto.
(d) "Board of Managers" and "Members" shall have the same meanings as
set forth in the Fund's limited liability company agreement (the
"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) "Oral Instructions" mean oral instructions received by Custodian
from an Authorized Person or from a person reasonably believed by
Custodian to be an Authorized Person. Custodian may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via electronic
mail as Oral Instructions.
(h) "Custodian" means Custodian Company or a subsidiary or affiliate of
Custodian 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) "Interests" mean the shares of beneficial interest of any series or
class of the Fund.
(l) "Property" means:
(i) any and all securities and other investment items which the
Fund may from time to time deposit, or cause to be deposited,
with Custodian or which Custodian may from time to time hold
for the Fund;
(ii) all income in respect of any of such securities or other
investment items;
(iii) all proceeds of the sale of any of such securities or
investment items; and
(iv) all proceeds of the sale of securities issued by the Fund,
which are received by Custodian from time to time, from or on
behalf of the Fund.
(n) "Written Instructions" mean (i) written instructions signed by two
Authorized Persons and received by Custodian or (ii) trade
instructions transmitted by means of an electronic transaction
reporting system which requires the use of a password or other
authorized identifier in order to gain access. The instructions may
be delivered electronically or by hand, mail or facsimile sending
device.
2. Appointment. The Fund hereby appoints Custodian to provide custodian
services to the Fund and Custodian accepts such appointment and agrees to
furnish such services.
3. Delivery of Documents. The Fund has provided or, where applicable, will
provide Custodian with the following:
(a) at Custodian's request, certified or authenticated copies of the
resolutions of the Fund's Board of Managers, approving the
appointment of Custodian or its affiliates to provide services;
(b) a copy of the Fund's most recent effective registration statement;
(c) a copy of the Fund's advisory agreements;
(d) a copy of the Fund's administration agreement; and
(e) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. Compliance with Laws.
Custodian undertakes to comply with all 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 Custodian hereunder. Except as specifically set forth
herein, Custodian assumes no responsibility for such compliance by the
Fund or any other entity.
5. Instructions.
(a) Unless otherwise provided in this Agreement, Custodian shall act
only upon Oral Instructions or Written Instructions.
(b) Custodian shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or from a
person reasonably believed by Custodian to be an Authorized Person)
pursuant to this Agreement. In the absence of manifest error (to
Custodian), Custodian may assume that any such Oral Instructions or
Written Instructions received hereunder are not in any way
inconsistent with the provisions of organizational documents of the
Fund or of any vote, resolution or proceeding of the Fund's Board of
Managers or of the Fund's Members, unless and until Custodian
receives Written Instructions to the contrary.
(c) The Fund agrees to forward to Custodian Written Instructions
confirming Oral Instructions (except where such Oral Instructions
are given by Custodian or its affiliates) so that Custodian 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 Custodian or
differ from the Oral Instructions shall in no way invalidate the
transactions or enforceability of the transactions authorized by the
Oral Instructions or Custodian's ability to rely upon such Oral
Instructions.
6. Right to Receive Advice.
(a) Advice of the Fund. If Custodian is in doubt as to any action it
should or should not take, Custodian may request directions or
advice, including Oral Instructions or Written Instructions, from
the Fund.
(b) Advice of Counsel. If Custodian shall be in doubt as to any question
of law pertaining to any action it should or should not take,
Custodian may, at its own expense, request advice from counsel of
its own choosing or, at the Fund's expense, request advice from
counsel for the Fund.
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions Custodian
receives from the Fund, and the advice it receives from counsel,
Custodian shall be entitled to rely upon and follow the advice of
counsel. Custodian shall promptly inform the Fund in writing (via
e-mail or otherwise) of such a conflict.
(d) Protection of Custodian. Custodian shall be without liability for
any action Custodian takes or does not take in reliance upon
directions or advice or Oral Instructions or Written Instructions
Custodian receives from or on behalf of the Fund or from counsel and
which Custodian believes, reasonably and in good faith, to be
consistent with those directions or advice and Oral Instructions or
Written Instructions. Nothing in this section shall be construed so
as to impose an obligation upon Custodian (i) to seek such
directions or advice or Oral Instructions or Written Instructions,
or (ii) to act in accordance with such directions or advice or Oral
Instructions or Written Instructions, unless under the terms of
other provisions of this Agreement, the same is a condition of
Custodian's properly taking or not taking such action. Nothing in
this Section shall excuse Custodian when an action or omission on
the part of Custodian constitutes willful misfeasance, bad faith,
gross negligence or reckless disregard by Custodian of any duty,
obligation or responsibility under this Agreement.
7. Records; Visits. The books and records pertaining to the Fund, which are
in the possession or under the control of Custodian, shall be the
property of the Fund. Such books and records shall be prepared and
maintained as required by the 1940 Act and other applicable securities
laws, rules and regulations. The Fund and Authorized Persons shall have
access to such books and records at all times during Custodian's normal
business hours. Upon the reasonable request of the Fund, copies of any
such books and records shall be promptly provided by Custodian to the
Fund or to an authorized representative of the Fund, at the Fund's
expense.
8. Confidentiality. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that
is competitively sensitive material, and not generally known to the
public, including, but not limited to, information about product plans,
marketing strategies, finances, operations, customer relationships,
customer profiles, customer lists, sales estimates, business plans, and
internal performance results relating to the past, present or future
business activities of the Fund or Custodian, their respective
subsidiaries and affiliated companies and the customers, clients and
suppliers of any of them; (b) any scientific or technical information,
design, process, procedure, formula, or improvement that is commercially
valuable and secret in the sense that its confidentiality affords the
Fund or Custodian a competitive advantage over its competitors; (c) all
confidential or proprietary concepts, documentation, reports, data,
specifications, computer software, source code, object code, flow charts,
databases, inventions, know-how, and trade secrets, whether or not
patentable or copyrightable; and (d) anything designated as confidential.
Notwithstanding the foregoing, information shall not be subject to such
confidentiality obligations if: (a) it is already known to the receiving
party at the time it is obtained; (b) it is or becomes publicly known or
available through no wrongful act of the receiving party; (c) it is
rightfully received from a third party who, to the best of the receiving
party's knowledge, is not under a duty of confidentiality; (d) it is
released by the protected party to a third party without restriction; (e)
it is required to be disclosed by the receiving party pursuant to a
requirement of a court order, subpoena, governmental or regulatory agency
or law (provided the receiving party will provide the other party written
notice of such requirement, to the extent such notice is permitted); (f)
release of such information by Custodian is necessary and appropriate in
connection with the provision of services under this Agreement; (g) it is
relevant to the defense of any claim or cause of action asserted against
the receiving party and is disclosed in connection with such defense; or
(h) it has been or is independently developed or obtained by the
receiving party.
9. Cooperation with Accountants. Custodian shall cooperate with the Fund's
independent public accountants and shall take all reasonable action to
make any requested information available to such accountants as
reasonably requested by the Fund.
10. Custodian System. Custodian 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 (collectively,
"Proprietary Information" to the extent that any such Proprietary
Information is developed or owned by Custodian and utilized by Custodian
in connection with the services provided by Custodian to the Fund.
Nothing herein shall be interpreted to confer upon or grant to Custodian
any right, title or interest in property of the Fund, investment adviser
or their respective affiliates.
11. Disaster Recovery. Custodian shall maintain in effect at all times during
the term of this Agreement a commercially reasonable disaster recovery
plan. Without in any way limited the foregoing, Custodian 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, Custodian
shall, at no additional expense to the Fund, take reasonable steps to
minimize service interruptions. Subject to the foregoing, Custodian shall
have no liability with respect to the loss of data or service
interruptions caused by equipment failure beyond its reasonable control,
provided such loss or interruption is not caused by Custodian's own
willful misfeasance, bad faith, negligence or reckless disregard of its
duties or obligations under this Agreement.
12. Compensation. As compensation for custody services rendered by Custodian
during the term of this Agreement, the Fund will pay to Custodian a fee
or fees as may be agreed to in writing from time to time by the Fund and
Custodian. The Fund acknowledges that Custodian may receive float
benefits in connection with maintaining certain accounts required to
provide services under this Agreement.
13. Indemnification. The Fund agrees to indemnify, defend and hold harmless
Custodian 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 Custodian takes (i) at the request or the direction of or in
reliance on the advice of the Fund or (ii) upon Oral Instructions or
Written Instructions; provided, however, that neither Custodian, nor any
of its affiliates, shall be indemnified against any liability (or any
expenses incident to such liability) caused by Custodian's or its
affiliates' own willful misfeasance, bad faith, negligence or reckless
disregard in the performance of Custodian's activities under this
Agreement. The provisions of this Section 13 shall survive termination of
this Agreement.
14. Responsibility of Custodian.
(a) Custodian shall be under no duty to take any action hereunder on
behalf of the Fund except to the extent necessary to fulfill its
duties and obligations as specified in this Agreement or as may be
specifically agreed to by Custodian and the Fund in a written
amendment hereto. Custodian 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. Custodian shall be liable only for any
damages arising out of Custodian's failure to perform its duties
under this Agreement to the extent such damages arise out of
Custodian's willful misfeasance, bad faith, negligence or reckless
disregard of its duties under this Agreement.
(b) Subject to its obligations under Section 11 of this Agreement and
provided that if it has acted in accordance with the standard of
care set forth above, (i) Custodian 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; severe elements of nature; or non-performance by a
third party; and (ii) Custodian 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 Custodian reasonably believes
to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, neither
Custodian nor its affiliates shall be liable for any consequential,
special or indirect losses or damages, whether or not the likelihood
of such losses or damages was known by Custodian or its affiliates.
(d) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(e) The provisions of this Section 14 shall survive termination of this
Agreement.
15. Description of Services.
(a) Delivery of the Property. The Fund will deliver or arrange for
delivery to Custodian, all the Property owned by the Fund, including
cash received as a result of the distribution of Interests, during
the term of this Agreement. Custodian will not be responsible for
such property until actual receipt.
(b) Receipt and Disbursement of Money. Custodian, acting upon Written
Instructions, shall open and maintain separate accounts (each an
"Account") in the Fund's name using all cash received from or for
the account of the Fund, subject to the terms of this Agreement.
Custodian shall make cash payments from or for the Accounts only
for:
(i) purchases of securities in the name of the Fund, Custodian,
Custodian's nominee or a sub-custodian or nominee thereof as
provided in sub-section (j) and for which Custodian has
received a copy of the broker's or dealer's confirmation or
payee's invoice, as appropriate;
(ii) purchase or redemption of Interests pursuant to Written
Instructions;
(iii) payment of, subject to Written Instructions, interest, taxes
(provided that tax which Custodian considers is requested to be
deducted or withheld "at source" will be governed by Section
15(h)(iii)(B) of this Agreement), administration, accounting,
advisory and management fees which are to be borne by the Fund;
(iv) payment to, subject to receipt of Written Instructions, the
Fund's transfer agent, as agent for the Members, of an amount
equal to the amount of dividends and distributions stated in
the Written Instructions to be distributed in cash by the
transfer agent to Members, or, in lieu of paying the Fund's
transfer agent, Custodian may arrange for the direct payment of
cash dividends and distributions to Members in accordance with
procedures mutually agreed upon from time to time by and among
the Fund, Custodian and the Fund's transfer agent;
(v) payments, upon receipt of Written Instructions, in connection
with the conversion, exchange or surrender of securities owned
or subscribed to by the Fund and held by or delivered to
Custodian;
(vi) payments of the amounts of dividends received with respect to
securities sold short;
(vii) payments to Custodian for its services hereunder;
(viii) payments to a sub-custodian pursuant to provisions in
sub-section (c) of this Section; and
(ix) other payments, upon Written Instructions.
Custodian is hereby authorized to endorse and collect all checks, drafts
or other orders for the payment of money received as custodian for the
Accounts.
(c) Receipt of Securities; Subcustodians.
(i) Custodian shall hold all securities received by it for the
Accounts in a separate account that physically segregates such
securities from those of any other persons, firms or
corporations, except for securities held in a Book-Entry System
or through a sub-custodian or depository. All such securities
shall be held or disposed of only upon Written Instructions of
the Fund pursuant to the terms of this Agreement. Custodian
shall have no power or authority to assign, hypothecate, pledge
or otherwise dispose of any such securities or investment,
except upon the express terms of this Agreement or upon Written
Instructions authorizing the transaction. In no case may any
member of the Fund's Board of Managers, or any officer,
employee or agent of the Fund withdraw any securities.
(ii) At Custodian's own expense and for its own convenience,
Custodian may enter into sub-custodian agreements with other
banks or trust companies to perform duties described in this
sub-section (c) with respect to domestic assets. Such bank or
trust company shall have an aggregate capital, surplus and
undivided profits, according to its last published report, of
at least one million dollars ($1,000,000), if it is a
subsidiary or affiliate of Custodian, or at least twenty
million dollars ($20,000,000) if such bank or trust company is
not a subsidiary or affiliate of Custodian. 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 the prior written consent of the Fund.
(iii) In addition, Custodian may enter into arrangements with
sub-custodians with respect to services regarding foreign
assets. Any such arrangement will not be entered into without
the prior written consent of the Fund.
(iv) Custodian shall remain responsible for the acts and omissions
of any sub-custodian chosen by Custodian under the terms of
this sub-section (c) to the same extent that Custodian is
responsible for its own acts and omissions.
(d) Transactions Requiring Instructions. Upon receipt of Oral
Instructions or Written Instructions and not otherwise, Custodian,
directly or through the use of the Book-Entry System, shall:
(i) deliver any securities held for the Fund against the receipt of
payment for the sale of such securities or otherwise in
accordance with standard market practice;
(ii) execute and deliver to such persons as may be designated in
such Oral Instructions or Written Instructions, proxies,
consents, authorizations, and any other instruments whereby the
authority of the Fund as owner of any securities may be
exercised;
(iii) deliver any securities to the issuer thereof, or its agent,
when such securities are called, redeemed, retired or otherwise
become payable at the option of the holder; provided that, in
any such case, the cash or other consideration is to be
delivered to Custodian;
(iv) deliver any securities held for the Fund against receipt of
other securities or cash issued or paid in connection with the
liquidation, reorganization, refinancing, tender offer, merger,
consolidation or recapitalization of any corporation, or the
exercise of any conversion privilege;
(v) deliver any securities held for the Fund to any protective
committee, reorganization committee or other person in
connection with the reorganization, refinancing, merger,
consolidation, recapitalization or sale of assets of any
corporation, and receive and hold under the terms of this
Agreement such certificates of deposit, interim receipts or
other instruments or documents as may be issued to it to
evidence such delivery;
(vi) make such transfer or exchanges of the assets of the Fund and
take such other steps as shall be stated in said Oral
Instructions or Written Instructions to be for the purpose of
effectuating a duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of
the Fund;
(vii) release securities belonging to the Fund to any bank or trust
company for the purpose of a pledge or hypothecation to secure
any loan incurred by the Fund; provided, however, that
securities shall be released only upon payment to Custodian 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 Fund in
connection with any repurchase agreement entered into on behalf
of the Fund, but only on receipt of payment therefor; and pay
out monies of the Fund in connection with such repurchase
agreements, but only upon the delivery of the securities;
(ix) release and deliver or exchange securities owned by the Fund in
connection with any conversion of such securities, pursuant to
their terms, into other securities;
(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 Fund for the
purpose of redeeming in kind shares of the Fund upon delivery
thereof to Custodian; and
(xii) release and deliver or exchange securities owned by the Fund
for other purposes.
Custodian must also receive a certified resolution describing the
nature of the corporate purpose and the name and address of the
person(s) to whom delivery shall be made when such action is
pursuant to sub-paragraph d(xii).
(e) Use of Book-Entry System or Other Depository. Custodian is
authorized and instructed, on a continuous basis, to deposit in
Book-Entry System and other depositories all securities belonging to
the Fund eligible for deposit therein and to utilize Book-Entry
System and other depositories to the extent possible in connection
with settlements of purchases and sales of securities by the Fund,
and deliveries and returns of securities loaned, subject to
repurchase agreements or used as collateral in connection with
borrowings. Custodian shall continue to perform such duties until it
receives Written Instructions or Oral Instructions authorizing
contrary actions. Custodian shall administer Book-Entry System or
other depository as follows:
(i) With respect to securities of the Fund which are maintained in
Book-Entry System or another depository, the records of
Custodian shall identify by book-entry or otherwise those
securities belonging to the Fund.
(ii) Assets of the Fund deposited in Book-Entry System or another
depository will (to the extent consistent with applicable law
and standard practice) at all times be segregated from any
assets and cash controlled by Custodian in other than a
fiduciary or custodian capacity but may be commingled with
other assets held in such capacities.
Custodian will provide the Fund with such reports on its own system
of internal control as the Fund may reasonably request from time to
time.
(f) Registration of Securities. All Securities held for the Fund which
are issued or issuable only in bearer form, except such securities
held in the Book-Entry System or in another depository, shall be
held by Custodian in bearer form; all other securities held for the
Fund may be registered in the name of the Fund, Custodian,
Book-Entry System, another depository, a sub-custodian, or any duly
appointed nominee of the Fund, Custodian, Book-Entry System or
sub-custodian. The Fund reserves the right to instruct Custodian as
to the method of registration and safekeeping of the securities of
the Fund. The Fund agrees to furnish to Custodian appropriate
instruments to enable Custodian 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 Fund.
(g) Voting and Other Action. Neither Custodian nor its nominee shall
vote any of the securities held pursuant to this Agreement by or for
the account of the Fund, except in accordance with Written
Instructions. Custodian, directly or through the use of another
entity, shall execute in blank and promptly deliver all notices,
proxies and proxy soliciting materials received by Custodian as
custodian of the Property to the registered holder of such
securities. If the registered holder is not the Fund, then Written
Instructions or Oral Instructions must designate the person who owns
such securities.
(h) Transactions Not Requiring Instructions. In the absence of contrary
Written Instructions, Custodian is authorized to take the following
actions:
(i) Collection of Income and Other Payments.
(A) collect and receive for the account of the Fund, all
income, dividends, distributions, coupons, option
premiums, other payments and similar items, included or to
be included in the Property, and, in addition, promptly
advise the Fund of such receipt and credit such income, as
collected, to the Fund's custodian account;
(B) endorse and deposit for collection, in the name of the
Fund, checks, drafts, or other orders for the payment of
money;
(C) receive and hold for the account of the Fund all
securities received as a distribution on the Fund's
securities as a result of a stock dividend, share split-up
or reorganization, recapitalization, readjustment or other
rearrangement or distribution of rights or similar
securities issued with respect to any securities belonging
to the Fund and held by Custodian hereunder;
(D) present for payment and collect the amount payable upon
all securities which may mature or be called, redeemed,
retired, or otherwise become payable (on a mandatory
basis) on the date such securities become payable; and
(E) take any action which may be necessary and proper in
connection with the collection and receipt of such income
and other payments and the endorsement for collection of
checks, drafts, and other negotiable instruments.
(ii) Miscellaneous Transactions.
(A) Custodian is authorized to deliver or cause to be
delivered Property against payment or other consideration
or written receipt therefor in the following cases:
(1) for examination by a broker or dealer selling for the
account of the Fund in accordance with street
delivery custom;
(2) for the exchange of interim receipts or temporary
securities for definitive securities; and
(3) for transfer of securities into the name of the Fund
or Custodian or a sub-custodian or a nominee of one
of the foregoing, or for exchange of securities for a
different number of bonds, certificates, or other
evidence, representing the same aggregate face amount
or number of units bearing the same interest rate,
maturity date and call provisions, if any; provided
that, in any such case, the new securities are to be
delivered to Custodian.
(B) unless and until Custodian receives Oral Instructions or
Written Instructions to the contrary, Custodian shall:
(1) pay all income items held by it which call for
payment upon presentation and hold the cash received
by it upon such payment for the account of the Fund;
(2) collect interest and cash dividends received, with
notice to the Fund, to the account of the Fund;
(3) hold for the account of the Fund all stock dividends,
rights and similar securities issued with respect to
any securities held by Custodian; and
(4) subject to receipt of such documentation and
information as Custodian may request, execute as
agent on behalf of the Fund all necessary ownership
certificates required by a national governmental
taxing authority or under the laws of any U.S. state
now or hereafter in effect, inserting the Fund's name
on such certificate as the owner of the securities
covered thereby, to the extent it may lawfully do so.
(iii) Other Matters.
(A) subject to receipt of such documentation and information
as Custodian may request, Custodian will, in such
jurisdictions as Custodian may agree from time to time,
seek to reclaim or obtain a reduction with respect to any
withholdings or other taxes relating to assets maintained
hereunder (provided that Custodian will not be liable for
failure to obtain any particular relief in a particular
jurisdiction); and
(B) Custodian is authorized to deduct or withhold any sum in
respect of tax which Custodian considers is required to be
deducted or withheld "at source" by any relevant law or
practice.
(i) Segregated Accounts.
(i) Custodian shall upon receipt of Written Instructions or Oral
Instructions establish and maintain segregated accounts on its
records for and on behalf of the Fund. Such accounts may be
used to transfer cash and securities, including securities in
Book-Entry System or other depository:
(A) for the purposes of compliance by the Fund with the
procedures required by a securities or option exchange,
providing such procedures comply with the 1940 Act and any
releases of the SEC relating to the maintenance of
segregated accounts by registered closed-end investment
companies; and
(B) upon receipt of Written Instructions, for other purposes.
(j) Purchases of Securities. Custodian 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. Custodian shall upon receipt of securities
purchased by or for the Fund (or otherwise in accordance with
standard market practice) pay out of the monies held for the
account of the Fund the total amount payable to the person from
whom or the broker through whom the purchase was made, provided
that the same conforms to the total amount payable as set forth
in such Oral Instructions or Written Instructions.
(k) Sales of Securities. Custodian shall settle sold securities upon
receipt of Oral Instructions or Written Instructions that specify:
(i) the name of the issuer and the title of the security, including
CUSIP number if applicable;
(ii) the number of 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 Fund upon such sale;
(vi) the name of the broker through whom or the person to whom the
sale was made; and
(vii)the location to which the security must be delivered and
delivery deadline, if any.
Custodian shall deliver the securities upon receipt of the total
amount payable to the Fund upon such sale, provided that the
total amount payable is the same as was set forth in the Oral
Instructions or Written Instructions. Notwithstanding the other
provisions thereof, Custodian may accept payment in such form 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) Custodian shall furnish to the Fund the following reports:
(A) such periodic and special reports as the Fund may
reasonably request;
(B) a monthly statement summarizing all transactions and
entries for the account of the Fund, listing each
portfolio security belonging to the Fund with the adjusted
average cost of each issue and the market value at the end
of such month and stating the cash account of the Fund
including disbursements;
(C) the reports required to be furnished to the Fund 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 Fund and Custodian.
(ii) Custodian shall transmit promptly to the Fund any proxy
statement, proxy material, notice of a call or conversion or
similar communication received by it as custodian of the
Property. Custodian shall be under no other obligation to
inform the Fund as to such actions or events. For
clarification, upon termination of this Agreement Custodian
shall have no responsibility to transmit such material or to
inform the Fund or any other person of such actions or events.
(m) Crediting of Accounts. If Custodian 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 Custodian'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 Custodian's actual receipt of the amount due
or (c) provisional crediting of any amounts due, and (i) Custodian
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 Custodian is required to repay to a third party such
amounts so credited, or if any Property has been incorrectly
credited, Custodian shall have the absolute right in its sole
discretion without demand to reverse any such credit or payment, to
debit or deduct the amount of such credit or payment from the
Account, and to otherwise pursue recovery of any such amounts so
credited from the Fund. Nothing herein or otherwise shall require
Custodian to make any advances or to credit any amounts until
Custodian's actual receipt thereof. The 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 Custodian of
any advance or credit made by Custodian (including charges related
thereto) to such Account.
(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 Custodian) shall be at the sole
risk of the Fund. If payment is not received by Custodian within a
reasonable time after proper demands have been made, Custodian shall
notify the Fund in writing, including copies of all demand letters,
any written responses and memoranda of all oral responses and shall
await instructions from the Fund. Custodian shall not be obliged to
take legal action for collection unless and until reasonably
indemnified to its satisfaction. Custodian shall also notify the
Fund in writing as soon as reasonably practicable whenever income
due on securities is not collected in due course and shall provide
the Fund with periodic status reports of such income collected after
a reasonable time.
(o) Foreign Exchange. Custodian and/or sub-custodians may enter into or
arrange foreign exchange transactions (at such rates as they may
consider appropriate) in order to facilitate transactions under this
Agreement, and such entities and/or their affiliates may receive
compensation in connection with such foreign exchange transactions.
Custodian agrees that it will provide to the Fund upon request
information concerning the aforementioned rates.
16. Duration and Termination. This Agreement shall continue until terminated
by the Fund or Custodian on 120 days' prior written notice to the other
party. In the event this Agreement is terminated (pending appointment of
a successor to Custodian or vote of the Members of the Fund to dissolve
or to function without a custodian of its cash, securities or other
property), Custodian shall not deliver cash, securities or other property
of the Fund to the Fund. If the Agreement is terminated by the Fund and a
successor custodian is not identified by the Fund prior to the effective
date of termination, Custodian may deliver the Fund's cash, securities
and other property to a bank or trust company of Custodian'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 Fund to be held under terms similar
to those of this Agreement. If the Agreement is terminated by Custodian
and a successor custodian is not identified by the Fund prior to the
effective date of termination, Custodian may deliver the Fund's cash,
securities and other property to a bank or trust company mutually
agreed-upon between Custodian and the Fund, such agreement not to be
unreasonably withheld or delayed, as a custodian for the Fund, provided
however, if such mutual agreement is not timely made, Custodian may
deliver the Fund's cash, etc. to a bank or trust company in accordance
with the foregoing sentence.
17. Notices. Notices shall be addressed (a) if to Custodian at
[_____________], Attention: [_________]; (b) if to the Fund, at Banc of
America Capital Management, Bank of America Plaza, NC1-002-33-31, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
President; 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 has been
mailed. If notice is sent by messenger, it shall be deemed to have been
given on the day it is delivered.
18. Amendments. This Agreement, or any term hereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
19. Assignment. Custodian may assign its rights hereunder to any
majority-owned direct or indirect subsidiary of Custodian provided that
Custodian gives the Fund 30 days prior written notice of such assignment.
20. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
21. Miscellaneous.
(a) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof,
provided that the parties may embody in one or more separate
documents their agreement, if any, with respect to delegated duties.
(b) No Representations or Warranties. Except as expressly provided in
this Agreement, Custodian hereby disclaims all representations and
warranties, express or implied, made to the Fund or any other
person, including, without limitation, any warranties regarding
quality, suitability, merchantability, fitness for a particular
purpose or otherwise (irrespective of any course of dealing, custom
or usage of trade), of any services or any goods provided incidental
to services provided under this Agreement. Custodian disclaims any
warranty of title or non-infringement except as otherwise set forth
in this Agreement.
(c) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees not to
(i) make any modifications to its registration statement or (ii)
adopt any policies, which would affect materially the obligations or
responsibilities of Custodian hereunder without the prior written
approval of Custodian, which approval shall not be unreasonably
withheld or delayed.
(d) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or
effect.
(e) Governing Law. This Agreement shall be deemed to be a contract made
in Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(f) Partial Invalidity. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(g) Successors and Assigns. This Agreement shall be binding upon and
shall inure to 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.
CUSTODIAN BACAP ALTTERNATIVE
MULTI-STRATEGY FUND, L.L.C.
By: _______________________________ By: ____________________________________
Title: ____________________________ Title: _________________________________
03564.0004 #375068
