Exhibit (j)(iii)
FORM OF
ADMINISTRATION, ACCOUNTING AND INVESTOR SERVICES AGREEMENT
THIS AGREEMENT is made as of ___________, 2005, by and among each of the
entities listed on Schedule A, attached hereto and made a part hereof as may be
amended from time to time (each a "Fund" and collectively, the "Funds"), CSFB
Alternative Capital Inc., a Delaware corporation and the adviser to the Funds
("CSFBAC"), and PFPC INC., a Massachusetts corporation ("PFPC").
W I T N E S S E T H :
WHEREAS, CSFBAC and each Fund wish to retain PFPC to provide certain
administration, accounting and investor services provided for herein, and PFPC
wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and the 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) "1940 ACT" means the Investment Company Act of 1940, as amended.
(d) "AUTHORIZED PERSON" means any officer of a Fund and any other person
duly authorized by such Fund's directors to give Oral Instructions and
Written Instructions on behalf of such Fund. An Authorized Person's
scope of authority may be limited by setting forth such limitation in
a written document signed by the party which is authorizing the
authorized person and received by PFPC.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "GENERAL PARTNER" and "LIMITED PARTNER" shall have the same meaning
given such terms in a particular Fund's limited partnership agreement
(if the Fund is a limited partnership).
(g) "MANAGER" and "MEMBER" shall have the same meaning given such terms in
a particular Fund's LLC Agreement (as hereinafter defined), if that
Fund is a limited liability company.
(h) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC from an
Authorized Person or from a person reasonably believed by PFPC to be
an Authorized Person. PFPC may consider and rely upon instructions it
receives from an Authorized Person via electronic mail as Oral
Instructions.
(i) "ORGANIZATIONAL DOCUMENTS" means in the case of each Fund, the Fund's
certificate of formation, certificate of limited partnership,
memorandum and articles of incorporation, Limited Liability Company
Agreement ("LLC Agreement"), bylaws, and other documents constituting
the Fund.
(j) "SEC" means the Securities and Exchange Commission.
(k) "SECURITIES LAWS" means the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(l) "WRITTEN INSTRUCTIONS" means (i) written instructions signed by an
Authorized Person and received by PFPC or (ii) trade instructions
transmitted (and received by PFPC) by means of an electronic
transaction reporting system, access to which requires use of a
password or other authorized identifier. The instructions may be
delivered by hand, mail, or facsimile sending device.
2. APPOINTMENT.
CSFBAC and each Fund hereby appoint PFPC to provide administration,
accounting and investor services in accordance with the terms set forth in
this Agreement. PFPC accepts such appointment and agrees to furnish such
services. Additional Funds may be added to this Agreement from time to time
through the execution of an Instrument of Accession between such additional
Fund and PFPC whereby such additional Fund and PFPC will agree to be bound
by the terms of this Agreement (as it may be amended with respect to such
Fund by such instrument of succession). The addition of a Fund to this
Agreement will not affect the rights or obligations of any other Fund
pursuant to the terms of this Agreement. This Agreement also may be
terminated with respect to a
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Fund without such termination affecting the rights or obligations of any
other Fund pursuant to the terms of this Agreement.
3. COMPLIANCE WITH RULES AND REGULATIONS.
With respect to a particular Fund, PFPC undertakes to comply with the
applicable requirements of the Securities Laws, and any laws, rules and
regulations of governmental authorities having jurisdiction with respect to
the duties to be performed by PFPC hereunder. Except as specifically set
forth herein or in a separate agreement signed by PFPC, PFPC assumes no
responsibility for such compliance by a Fund.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instructions or Written
Instructions it receives from an Authorized Person (or from a person
reasonably believed by PFPC to be an Authorized Person) pursuant to
this Agreement. PFPC may assume that any Oral Instruction or Written
Instruction received hereunder is not in any way inconsistent with the
provisions of the Organizational Documents or this Agreement or of any
vote, resolution or proceeding of a Fund's directors, Managers,
General Partner, or Members, unless and until PFPC receives Written
Instructions to the contrary, unless PFPC has actual knowledge to the
contrary.
(c) CSFBAC and each Fund, as appropriate, agree to forward to PFPC Written
Instructions confirming Oral Instructions (except where such Oral
Instructions are given by PFPC or its affiliates) so that PFPC
receives the Written Instructions as promptly as practicable and in
any event by the close of business on the day after such Oral
Instructions are received. The fact that such confirming Written
Instructions are not received by PFPC or differ from the
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Oral Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral Instructions
or PFPC's ability to rely upon such Oral Instructions. Without
prejudice to the foregoing, where PFPC is aware of a material
discrepancy between Oral Instructions and confirming Written
Instructions, PFPC shall promptly notify CSFBAC or the Fund, as
appropriate, of such discrepancy. Where Oral Instructions or Written
Instructions reasonably appear to have been received from an
Authorized Person, PFPC shall incur no liability to CSFBAC or the
Fund, as appropriate, in acting upon such Oral Instructions or Written
Instructions provided that PFPC's actions comply with the other
provisions of this Agreement.
5. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUNDS. If PFPC is in doubt as to any action it should or
should not take, with respect to the duties to be performed by PFPC
hereunder, PFPC may request directions or advice, including Oral
Instructions or Written Instructions, from the Fund or CSFBAC acting
in its capacity as investment adviser to the Fund.
(b) ADVICE OF COUNSEL. If PFPC shall be in doubt as to any question of law
pertaining to any action it should or should not take, with respect to
the duties to be performed by PFPC hereunder, PFPC may request advice
of counsel of its own choosing (who may be counsel for a Fund, a
Fund's investment adviser, General Partner or Manager or PFPC, at the
option of PFPC). The cost of counsel pursuant to this provision shall
be borne by PFPC unless the advice is sought from counsel for a Fund
or the Fund's investment adviser.
(c) CONFLICTING ADVICE. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC receives from
CSFBAC or a Fund, and the advice PFPC receives from counsel, PFPC may
rely upon and follow the advice of counsel. Involving an issue of
compliance with law or legal requirements, PFPC Trust shall be
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entitle to rely upon and follow the reasonable advice of counsel,
provided PFPC Trust has discussed the matter with the Fund and/or
counsel of the Fund's choosing and the conflict is not resolved.
(d) PROTECTION OF PFPC. Subject to the second sentence of Section 12, PFPC
shall be indemnified severally by each Fund (as applicable) and
without liability for any action PFPC takes or does not take in good
faith and in reliance upon directions or advice or Oral Instructions
or Written Instructions PFPC receives from or on behalf of CSFBAC or a
Fund or from counsel and which PFPC reasonably believes, in good
faith, to be consistent with those directions or advice or Oral
Instructions or Written Instructions. Nothing in this section shall be
construed so as to impose an obligation upon PFPC (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 PFPC's
properly taking or not taking such action.
6. RECORDS; VISITS.
(a) The books and records pertaining to a Fund, which are in the
possession or under the control of PFPC, shall be the property of such
Fund. If a Fund is an investment company registered under the 1940
Act, such books and records shall be prepared and maintained as
required by the 1940 Act and other applicable securities laws, rules
and regulations. CSFBAC, each Fund and Authorized Persons (and, with
respect to a Fund registered under the 1940 Act, the staff of the SEC
or other regulators) shall have access to such books and records at
all times during PFPC's normal business hours. Upon the reasonable
request of CSFBAC or a Fund, copies of any such books and records
shall be provided by PFPC to CSFBAC, such Fund or to an Authorized
Person, at the expense of CSFBAC, such Fund or
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Funds (as applicable), provided that upon termination of this
Agreement the original records of the Funds still under control of
PFPC shall be delivered to the successor fund administrator, if
applicable. Any such books and records may be maintained in the form
of electronic media and stored on any magnetic disk or tape or similar
recording method.
(b) PFPC shall keep the following records:
(i) all books and records with respect to a Fund's books of
account;
(ii) records of each Fund's securities transactions;
(iii) list of investors with respect to each Fund, and
(iv) investor documentation with respect to each Fund.
(c) PFPC shall provide to the Fund any Report on Controls Placed in
Operation and Tests of Operating Effectiveness which PFPC receives
from PFPC's independent accountants in accordance with U.S. Statement
of Auditing Standards No. 70 ("SAS 70 Report") within thirty (30) days
after PFPC receives the SAS 70 Report from its independent
accountants, provided that the Fund has requested such SAS 70 Report.
7. CONFIDENTIALITY
(a) Each of (i) PFPC and (ii) CSFBAC and the Funds, shall keep
confidential any information relating to the business of the other
("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, investments,
investment strategies, finances, operations, employees, personnel,
customer relationships, customer profiles, customer lists, sales
estimates, business plans, and internal performance results relating
to the past, present or future business activities of CSFBAC, a Fund
or PFPC and their respective affiliates and
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subsidiaries 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 any Fund CSFBAC
or PFPC or their respective affiliates a competitive advantage over
their 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 requested or required to be
disclosed by the receiving party pursuant to a court order, subpoena,
governmental or regulatory agency request or law (provided the
receiving party will provide the other party prompt written notice of
the same, to the extent such notice is permitted); (f) it is relevant
to the defense of any claim or cause of action asserted against the
receiving party; (g) release of such information is necessary or
desirable in connection with PFPC's provision of services under this
Agreement; or (h) it has been or is independently developed or
obtained by the receiving party.
(b) If any party to this Agreement is requested or required (by oral
question, interrogatories, requests for information or documents,
subpoena, civil investigative demand, or similar process) to disclose
any Confidential Information, such party (the "Disclosing Party"),
will promptly notify the other parties (to the extent permitted by
law) of such request or
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requirement so that such other party or parties may seek an
appropriate protective order. If, in the absence of a protective order
or the receipt of a waiver hereunder, the Disclosing Party is, in the
opinion of counsel to the Disclosing Party, compelled to disclose the
Confidential Information the Disclosing Party may disclose only such
portion of the Confidential Information to the party compelling
disclosure as is required by law, as determined solely by counsel to
the Disclosing Party.
(c) Each party hereto acknowledges and agrees that, subject to the reuse
and re-disclosure provisions of Xxxxxxxxxx X-X, 00 XXX Part 248.11, it
shall not disclose the non-public personal information of investors in
the Funds obtained under this Agreement, except as necessary to carry
out the services set forth in this Agreement or as otherwise permitted
by law or regulation.
8. LIAISON WITH ACCOUNTANTS
PFPC shall act as liaison with each Fund's independent public accountants
and shall provide account analyses, fiscal year summaries, and other
audit-related schedules with respect to such Fund. PFPC shall take all
reasonable action in the performance of its duties under this Agreement
with respect to a particular Fund to assure that the necessary information
is made available in a timely fashion to such accountants for the
expression of their opinion with respect to that Fund, as required by the
Fund or CSFBAC.
9. PFPC SYSTEM. PFPC shall retain title to and ownership of any and all
databases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by PFPC in connection with
the services provided by PFPC to a Fund under this Agreement. Nothing in
this Agreement will grant to PFPC title to or ownership of any data bases,
computer programs, screen formats, report
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formats, interactive design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters, concepts, expertise,
patents, copyrights, trade secrets, or other related legal rights belonging
to the CSFBAC, the Funds, or their affiliates.
10. DISASTER RECOVERY.
PFPC 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. PFPC will, on request, provide the
Fund with a summary of PFPC's disaster recovery procedures. In the event of
equipment failures, PFPC shall, at no additional expense to any Fund, take
reasonable steps to minimize service interruptions. PFPC shall have no
liability with respect to the loss of data or service interruptions caused
by equipment failure, provided such loss or interruption is not caused by
PFPC's own willful misfeasance or willful misconduct, bad faith, gross
negligence or reckless disregard of its duties or obligations under this
Agreement.
11. COMPENSATION.
(a) As compensation for services set forth herein that are rendered by
PFPC during the term of this Agreement, the Funds will pay to PFPC a
fee or fees as may be agreed to in writing by the Fund and PFPC.
(b) The undersigned hereby represents and warrants to PFPC that (i) the
terms of this Agreement, (ii) the fees and expenses associated with
this Agreement, and (iii) any benefits accruing to PFPC or to the
adviser or sponsor to the Funds in connection with this Agreement,
including but not limited to any fee waivers, conversion cost
reimbursements, up front payments, signing payments or periodic
payments made or to be made by PFPC to such adviser or sponsor or any
affiliate of the funds relating to this Agreement have been fully
disclosed to the General Partner or Manager of the Fund, as the case
may be, and that,
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if required by applicable law, such General Partner or Manager has
approved or will approve the terms of this Agreement, any such fees
and expenses, and any such benefits.
12. INDEMNIFICATION.
(a) CSFBAC and each Fund agrees severally and not jointly to indemnify and
hold harmless PFPC 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 laws) (collectively, "Losses"), arising directly or
indirectly from any action or omission to act which PFPC takes in
connection with the provision of services hereunder to the extent
provided herein. Notwithstanding anything to the contrary contained
herein, neither PFPC, nor any of its affiliates, shall be indemnified
from losses against any liability (or any expenses incident to such
liability) caused by PFPC's or its affiliates' own willful misfeasance
or willful misconduct, bad faith, gross negligence or reckless
disregard in the performance of PFPC's activities under this
Agreement. Any amounts payable by a Fund hereunder shall be satisfied
only against such Fund's assets and not against the assets of any
other Fund. The provisions of this Section 12 shall survive
termination of this Agreement.
(b) PFPC agrees to indemnify, defend and hold harmless CSFBAC and each
Fund from Losses arising directly or indirectly from any act or
omission to act of PFPC pursuant to this Agreement but only if such
liability arises from PFPC's or its affiliates' own willful
misfeasance or willful misconduct, bad faith, gross negligence or
reckless disregard of its duties and obligations under this Agreement.
This indemnification shall be the Fund's sole remedy under this
Agreement.
13. RESPONSIBILITY OF PFPC
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(a) PFPC shall be under no duty to take any action on behalf of CSFBAC or
a Fund except as specifically set forth herein including actions taken
pursuant to Oral Instructions or Written Instructions or as may be
specifically agreed to by PFPC, CSFBAC and a Fund in writing and
signed by PFPC. PFPC shall be obligated to exercise care and diligence
in the performance of its duties hereunder, including duties set forth
in any schedules to this Agreement and to act in good faith in
performing services provided for under this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, (i) PFPC
shall not be liable for losses, delays, failure, errors, interruption
or loss of data occurring directly or indirectly by reason of
circumstances beyond its reasonable control, including without
limitation acts of God; action or inaction of civil or military
authority; public enemy; war; terrorism; riot; fire; flood; sabotage;
epidemics; labor disputes; civil commotion; interruption, loss or
malfunction of utilities, transportation, computer or communications
capabilities; insurrection; elements of nature; or non-performance by
a third party caused by any of the foregoing; provided that PFPC has
used reasonable efforts to minimize the impact of any of the foregoing
on its ability to fully perform its obligations hereunder; and (ii)
PFPC shall not be under any duty or obligation to inquire into and
shall not be liable for the validity or invalidity, authority or lack
thereof, or truthfulness or accuracy or lack thereof, of any
instruction, direction, notice, instrument or other information which
PFPC reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement (whether contained anywhere
in Sections 14-16 or otherwise) to the contrary, CSFBAC and each Fund
hereby acknowledge and agree that (i) PFPC, in the course of
calculating and reporting portfolio performance hereunder, may rely
upon PFPC's good faith interpretation of tax positions or its good
faith
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interpretation of relevant circumstances (as reasonably determined by
PFPC) in providing such tax services and in determining methods of
calculating portfolio performance to be used, and that (ii) PFPC shall
not be liable for losses or damages of any kind associated with such
reliance except to the extent such loss or damage is due to PFPC's
gross negligence, reckless disregard of its duties, willful
misfeasance or willful misconduct.
(d) Notwithstanding anything in this Agreement to the contrary, without
limiting anything in the immediately preceding sentence, the Funds
hereby acknowledge and agree that PFPC shall not be liable for any
losses or damages of any kind associated with any tax filings with
which PFPC has assisted in any way except to the extent such loss or
damage is due to PFPC's gross negligence or willful misconduct;
provided, however, that PFPC shall not be found to have been grossly
negligent for losses or damages associated with areas of
responsibility that the judiciary, regulators (or other governmental
officials) or members of the hedge fund industry determine would
otherwise apply to PFPC (or similar service providers) and which, as
of the date hereof, have yet to be identified by such parties as areas
for which PFPC (or any similar service provider) is (or would be)
responsible.
(e) Notwithstanding anything in this Agreement to the contrary, (i) no
party nor their 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 them or their affiliates.
(f) Each party shall have a duty to use commercially reasonable efforts to
mitigate damages for which the other party may become responsible.
(g) The provisions of this Section 13 shall survive termination of this
Agreement.
(h) Notwithstanding anything in this Agreement to the contrary, PFPC shall
have no liability either for any error or omission of any of its
predecessors as servicer on behalf of the Funds or for any failure to
discover any such error or omission.
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14. SERVICES. PFPC shall, with respect to each separate Fund, but only as
applicable to a particular Fund, perform the services set forth on Schedule
B to this Agreement.
15. DURATION AND TERMINATION.
(a) The term of this Agreement is for an initial term beginning from the
date of this Agreement and continuing through the close of business
three (3) years thereafter (the "Initial Term"). Upon the expiration
of the Initial Term, this Agreement will automatically renew for
successive terms of one (1) year ("Renewal Terms"). Any Fund or PFPC
may terminate this Agreement effective at the end of the Initial Term
or any Renewal Term by providing written notice to the other parties
of its intent not to renew. Notice of termination must be received not
less than ninety (90) days prior to the expiration of the Initial Term
or the then current Renewal Term. In the event a Fund gives notice of
termination, all reasonable expenses associated with movement (or
duplication) of records and materials and conversion thereof to a
successor service provider (or each successor service provider, if
there are more than one), and all trailing expenses incurred by PFPC,
will be borne by the Fund. If this Agreement is terminated with
respect to a particular Fund, this Agreement shall remain in full
force and effect with respect to the remaining Funds.
(b) If a party hereto fails in any material respect to perform its duties
and obligations hereunder (a "Defaulting Party"), or if a
representation and warranty of a party hereof becomes untrue or
inaccurate in any material respect, the other party (the
"Non-Defaulting Party") may give written notice thereof to the
Defaulting Party, and if such material breach shall not have been
remedied within sixty (60) days after such written notice is given,
then the Non-Defaulting Party may terminate this Agreement by giving
sixty (60) days' written notice of such termination to the Defaulting
Party. Termination of this Agreement by the Non-Defaulting Party shall
not constitute a waiver of any other rights or remedies with respect
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to obligations of the parties prior to such termination or rights of
PFPC to be reimbursed for all of its out-of-pocket expenses and its
normal monthly fees or other obligations due it. In all cases,
termination by the Non-Defaulting Party shall not constitute a waiver
by the Non-Defaulting Party of any other rights it might have under
this Agreement or otherwise against the Defaulting Party.
(c) Upon occurrence of any of the following events, the party not subject
to such event shall have the right to immediately terminate this
Agreement upon written notice to the other party: (i) either party
ceases doing (or gives notice of ceasing to do) business and its
business is not continued by another corporation or entity who has
agreed to assume its obligations, (ii) either party becomes insolvent
or files for or becomes a party to any involuntary bankruptcy,
receivership or similar proceeding, and such involuntary proceeding is
not dismissed within forty-five (45) calendar days after filing, or
(iii) either party makes an assignment for the benefit of creditors.
16. NOTICES.
All notices and other communication, including Written Instructions but
excluding Oral Instructions shall be addressed (a) if to PFPC, at 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or such
other address as PFPC may inform the Funds in writing); (b) if to the
Funds, at ____________________________, Xxx Xxxx, Xxx Xxxx 00000,
Attention: ________________; (c) if to CSFBAC, at _________________, Xxx
Xxxx, Xxx Xxxx 00000, Attention: ________________; or (d) if to none 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 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
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three days after it has been mailed. If notice is sent by messenger, it
shall be deemed to have been given on the day it is delivered.
17. AMENDMENTS.
This Agreement, or any term thereof, may be changed or waived only by
written amendment, signed by the party against whom enforcement of such
change or waiver is sought.
18. ASSIGNMENT; DELEGATION.
PFPC may assign its rights and delegate its duties hereunder with respect
to a Fund to any majority-owned direct or indirect subsidiary of PFPC or of
The PNC Financial Services Group, Inc., provided that PFPC gives such Fund
and CSFBAC thirty (30) days prior written notice of such assignment or
delegation and such assignment or delegation is approved by CSFBAC and each
such Fund, such consent not to be unreasonably withheld, conditioned or
delayed. CSFBAC may assign this Agreement if such assignment is approved by
PFPC, such consent not to be unreasonably withheld, conditioned or delayed.
19. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and the same instrument.
20. FURTHER ACTIONS.
Each party agrees to perform such further acts and execute such further
documents as are necessary to effectuate the purposes hereof.
21. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. As between each separate Fund and PFPC, this
Agreement (including the schedules attached hereto) 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
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their agreement, if any, with respect to delegated duties or other
matters as contemplated herein.
(b) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, each Fund agrees to
provide PFPC with prior notice to evaluate the impact of any
modifications to its Organizational Documents or the adoption of any
policies (a "Material Modification") which would materially affect the
obligations or responsibilities of PFPC hereunder. In the event of a
Material Modification PFPC shall have the option of either (i)
charging the particular Fund(s) for any new or additional services at
its customary rates or (ii) terminating this Agreement with respect to
that Fund(s) upon sixty (60) days written notice.
(c) CAPTIONS. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(e) INFORMATION. Each Fund will provide such information and documentation
as PFPC may reasonably request in connection with services provided by
PFPC to the Fund.
(f) GOVERNING LAW. This Agreement shall be deemed to be a contract made in
Delaware and governed by Delaware law without regard to principles of
conflict of law.
(g) 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.
(h) 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.
(i) NO REPRESENTATIONS OR WARRANTIES. Except as expressly provided in this
Agreement, PFPC hereby disclaims all representations and warranties,
express or implied, made to CSFBAC,
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a Fund or any other person, regarding quality, suitability,
merchantability, fitness for a particular purpose or otherwise
(irrespective of any course of dealing, custom or usage of trade), of
any services or any goods provided incidental to services provided
under this Agreement. PFPC disclaims any warranty of title or
non-infringement except as otherwise set forth in this Agreement.
(j) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(k) CUSTOMER IDENTIFICATION PROGRAM NOTICE. To help the U.S. government
fight the funding of terrorism and money laundering activities, U.S.
Federal law requires each financial institution to obtain, verify, and
record certain information that identifies each person who initially
opens an account with that financial institution on or after October
1, 2003. Certain of PFPC's affiliates are financial institutions, and
PFPC may, as a matter of policy, request (or may have already
requested) the Fund's name, address and taxpayer identification number
or other government-issued identification number, and, if such party
is a natural person, that party's date of birth. PFPC may also ask
(and may have already asked) for additional identifying information,
and PFPC may take steps (and may have already taken steps) to verify
the authenticity and accuracy of these data elements.
(l) PFPC represents and warrants that it has adopted policies and
procedures reasonably designed to detect and prevent money laundering
activities in compliance with applicable laws, regulations and
regulatory interpretations. In this regard, PFPC represents that it
shall (i) upon reasonable request, provide a copy of its anti-money
laundering program (or a summary thereof) to CSFBAC and, if
appropriate, the Funds, and (ii) upon request, provide to the Funds, a
copy of the attestation letter received by PFPC from an independent
auditor
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in connection with the annual audit performed with respect to PFPC's
Anti-Money Laundering program.
(m) PFPC is entering into this Agreement with CSFBAC and each of the Funds
separately and not jointly, and any duty, obligation or liability owed
or incurred by PFPC with respect to CSFBAC and a particular Fund shall
be owed or incurred solely with respect to CSFBAC and that Fund, and
shall not in any way create any duty, obligation or liability with
respect to any other Fund or CSFBAC. This Agreement shall be
interpreted to carry out the intent of the parties hereto that PFPC is
entering into a separate arrangement with CSFBAC and each separate
Fund.
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
---------------------------
By:
Title:
CSFB Alternative Capital, Inc.
---------------------------
By:
Title:
CSFB Alternative Capital Multi-Strategy Master
Fund, LLC
---------------------------
By:
Title:
CSFB Alternative Capital Event Driven Master
Fund, LLC
---------------------------
By:
Title:
CSFB Alternative Capital Long/Short Equity
Master Fund, LLC
---------------------------
By:
Title:
CSFB Alternative Capital Relative Value Master
Fund, LLC
---------------------------
By:
Title:
CSFB Alternative Capital Tactical Trading
Master Fund, LLC
---------------------------
By:
Title:
19
CSFB Alternative Capital Multi-Strategy Fund,
LLC
---------------------------
By:
Title:
CSFB Alternative Capital Event Driven Fund,
LLC
---------------------------
By:
Title:
CSFB Alternative Capital Long/Short Equity
Fund, LLC
---------------------------
By:
Title:
CSFB Alternative Capital Relative Value Fund,
LLC
---------------------------
By:
Title:
CSFB Alternative Capital Tactical Trading
Fund, LLC
---------------------------
By:
Title:
CSFB Alternative Capital Multi-Strategy
Institutional Fund, LLC
---------------------------
By:
Title:
CSFB Alternative Capital Event Driven
Institutional Fund, LLC
---------------------------
By:
Title:
20
CSFB Alternative Capital Long/Short Equity
Institutional Fund, LLC
---------------------------
By:
Title:
CSFB Alternative Capital Relative Value
Institutional Fund, LLC
---------------------------
By:
Title:
CSFB Alternative Capital Tactical Trading
Institutional Fund, LLC
---------------------------
By:
Title:
CSFB Alternative Capital Multi-Strategy
Offshore Institutional Fund, LDC
---------------------------
By:
Title:
CSFB Alternative Capital Event Driven Offshore
Institutional Fund, LDC
---------------------------
By:
Title:
CSFB Alternative Capital Long/Short Equity
Offshore Institutional Fund, LDC
---------------------------
By:
Title:
CSFB Alternative Capital Relative Value
Offshore Institutional Fund, LDC
---------------------------
By:
Title:
21
CSFB Alternative Capital Tactical Trading
Offshore Institutional Fund, LDC.
---------------------------
By:
Title:
[CSFB Alternative Capital Multi-Strategy
Private Fund, LP](1)
---------------------------
By:
Title:
[CSFB Alternative Capital Long/Short Equity
Private Fund, LP]
---------------------------
By:
Title:
[CSFB Alternative Capital Multi-Strategy
Private Fund Limited]
---------------------------
By:
Title:
[CSFB Alternative Capital Long/Short Equity
Private Fund Limited]
---------------------------
By:
Title:
----------
(1) Names of bracketed funds need to be confirmed.
22
SCHEDULE A
MASTER FUNDS
CSFB Alternative Capital Multi-Strategy Master Fund, LLC
CSFB Alternative Capital Event Driven Master Fund, LLC
CSFB Alternative Capital Long/Short Equity Master Fund, LLC
CSFB Alternative Capital Relative Value Master Fund, LLC
CSFB Alternative Capital Tactical Trading Master Fund, LLC
TAXABLE (NON-INSTITUTIONAL) FUNDS
CSFB Alternative Capital Multi-Strategy Fund, LLC
CSFB Alternative Capital Event Driven Fund, LLC
CSFB Alternative Capital Long/Short Equity Fund, LLC
CSFB Alternative Capital Relative Value Fund, LLC
CSFB Alternative Capital Tactical Trading Fund, LLC
TAX EXEMPT (INSTITUTIONAL) FUNDS
CSFB Alternative Capital Multi-Strategy Institutional Fund, LLC
CSFB Alternative Capital Event Driven Institutional Fund, LLC
CSFB Alternative Capital Long/Short Equity Institutional Fund, LLC
CSFB Alternative Capital Relative Value Institutional Fund, LLC
CSFB Alternative Capital Tactical Trading Institutional Fund, LLC
OFFSHORE (CAYMAN) UBTI BLOCKER FUNDS
CSFB Alternative Capital Multi-Strategy Offshore Institutional Fund, LDC
CSFB Alternative Capital Event Driven Offshore Institutional Fund, LDC
CSFB Alternative Capital Long/Short Equity Offshore Institutional Fund, LDC
CSFB Alternative Capital Relative Value Offshore Institutional Fund, LDC
CSFB Alternative Capital Tactical Trading Offshore Institutional Fund, LDC.
ONSHORE UNREGISTERED FEEDER FUNDS
[CSFB Alternative Capital Multi-Strategy Private Fund, LP](2)
[CSFB Alternative Capital Long/Short Equity Private Fund, LP]
OFFSHORE UNREGISTERED FEEDER FUNDS
[CSFB Alternative Capital Multi-Strategy Private Fund Limited]
[CSFB Alternative Capital Long/Short Equity Private Fund Limited]
----------
(2) Names of bracketed funds need to be confirmed.
23
SCHEDULE B(3)
ACCOUNTING SERVICES
- Journalize investment, capital and income and expense activities;
- [Record] [Verify] investment buy/sell trade tickets when received
from the investment adviser for the portfolio (the "Adviser");
- Maintain individual ledgers for investment securities;
- Maintain historical tax lots for each security;
- Record and reconcile corporate action activity and all other capital
changes;
- Reconcile cash and investment balances of the Fund with the Fund's
custodian(s) prime broker(s), and provide CSFBAC with the beginning
cash balance available for investment purposes daily on a T+1 basis.
- Calculate contractual expenses, including management fees and incentive
allocation, as applicable, in accordance with the Fund's
Organizational Documents;
- Post to and prepare, by such date and time as mutually agreed upon by the
parties, the Fund's statement of assets and liabilities and statement
of operations in U.S. dollar terms or such other currencies to the
extent that the Fund is denominated in such other currencies;
- Monitor the expense accruals and notify CSFBAC and an officer of the Fund
of any proposed adjustments;
- Control all disbursements and authorize such disbursements, in each case,
upon Written Instructions;
- Calculate capital gains and losses;
- Determine net income;
- Determine applicable foreign exchange gains and losses on payables and
receivables;
- Obtain security market quotes and currency exchange rates (if applicable)
from the Adviser, and calculate the value of the Fund's investments in
accordance with the applicable valuation policies or guidelines
provided by the Fund to PFPC, provided that PFPC does not inform the
Fund that it is either unable or unwilling to comply with such
policies or procedures;
- Transmit or mail a copy of the portfolio valuation as agreed upon by each
Fund and PFPC;
----------
(3) Subject to further discussion as we explore the division of services
between CSFBAC, the Funds and PFPC.
24
- Compute the net asset value in accordance with the provisions of the
prospectus, offering memorandum and pricing and fair valuation
policies (as applicable) of the Fund no later than [____] business
days after the end of the month and compute estimated net asset value,
by such date and time as shall be mutually agreed upon by the parties,
including a notional net asset value, where applicable, and provide to
CSFBAC the [five]-day close process information and any revised net
asset value calculation. The [five]-day close process shall include
for each of the first [____] business days following each month-end:
(1) the current day's valuation and related reports and (2) a revised
monthly valuation update for any revisions. In the event that there is
a material change to the Fund or in the event that either CSFBAC or
PFPC has made an error, a revised net asset value calculation shall be
computed; and
- As appropriate, compute yields, total return, expense ratios, portfolio
turnover rate, and, if required, portfolio average dollar-weighted
maturity.
ADMINISTRATION SERVICES.
- Prepare monthly security transaction listings;
- Supply various normal and customary Fund statistical data as requested on
an ongoing basis;
- Coordinate contractual relationships and communications between the Fund
and its contractual service providers;
- Prepare and file the Fund's Annual and Semi-Annual Reports with the SEC
on Form N-SAR (as applicable) via XXXXX, until CSFBAC or a Fund
notifies PFPC that it shall no longer required such services;
- Prepare and coordinate printing of the Fund's annual and semi-annual
shareholder reports (not including Form N-CSR), until CSFBAC or a Fund
notifies PFPC that it shall no longer required such services; and
- Prepare and coordinate with the Fund's counsel and Fund management
Post-Effective Amendments to the Fund's Registration Statement on Form
N-2, as needed, and coordinate the filing with the Fund's financial
printer;
- Monitor the Fund's assets on a monthly basis to assure adequate fidelity
bond coverage is maintained;
- Draft agendas and resolutions for quarterly Board meetings and draft
written consents of the Board;
- Coordinate the preparation, assembly and mailing of materials for
quarterly board meetings;
- Attend quarterly board meetings and draft minutes thereof;
- Maintain a calendar to assure compliance with various SEC filing and
Board approval deadlines;
25
- Assist the Fund in the handling of SEC examinations and responses
thereto;
- At the direction of each Fund complete subscription documents, investor
questionnaires and similar materials with respect to investments in
any portfolio funds (i.e., the funds in which an Investment Fund
invests) and redemptions therefrom (the "Sub-Docs"), and execute the
Sub-Docs as attorney-in-fact pursuant to that certain limited power of
attorney granted by each of the Funds, a form of which is attached
hereto as Schedule C. For clarification, as between PFPC and each
Fund, each Fund shall be solely responsible for (i) customer
suitability review and "know your customer" information requirements,
in accordance with all applicable laws, rules and regulations; and
(ii) any anti-money laundering, due diligence or other actions
required to be taken with respect to customers, which, if applicable
shall include without limitation, the USA PATRIOT Act (Pub. Law No.
107-56, October 26, 2001) and any similar laws enacted after the date
hereof; and
- Perform such additional administrative duties relating to the
administration of the Fund as may subsequently be agreed upon in
writing between, CSFBAC, such Fund and PFPC.
INVESTOR SERVICES.
- Furnish net asset value of a Fund to investors in such Fund, as required;
- Confirm investment and/or subscription by investors;
- Maintain the register of Limited Partners or Members, as applicable, and
enter on such register all issues, transfers and repurchases of
interests in the Fund;
- Arrange for the calculation of the issue and repurchase prices of
interests in the Fund in accordance with the Fund's Organizational
Documents;
- Allocate income, expenses, gains and losses to individual partners' or
Members' (as appropriate with respect to a particular fund) capital
accounts in accordance with the Fund's Organizational Documents;
- Calculate the incentive allocation in accordance with the Fund's
partnership agreement, as applicable and reallocate corresponding
amounts from the applicable Limited Partners' accounts to the General
Partner's account; [and]
[- Mail Fund offering materials to prospective investors in accordance with
instructions from an Authorized Person; and]
- Furnish such information from time to time as may be required by the
Fund.
26
SCHEDULE C
FORM POWER OF ATTORNEY
[FUND NAME], ("Fund"), DOES HEREBY CONSTITUTE AND APPOINT PFPC INC., a
Massachusetts corporation ("PFPC"), together with its affiliates, including any
direct or indirect subsidiary and its officers and employees, as its true and
lawful agents and attorneys-in-fact (the "Attorney(s)-in-fact"), in their name,
place and xxxxx to act as the Fund's agent for the following purposes:
1. Receiving, completing, and forwarding to the appropriate party, any
subscription documents (or the equivalent), investor questionnaires and
similar materials for investments in which the Fund desires to invest or
redemptions therefrom;
2. Signing any applications necessary (or, in the Attorney(s)-in-fact's
opinion, desirable) to achieve any of the matters or things referred to
above, and any forms, correspondence and other documents ancillary thereto;
and
3. Any other action which the Attorney(s)-in-fact deem is necessary or
desirable in connection with any of the above.
PFPC shall have full power and authority to make and constitute in its place and
stead one or more persons to act as substitute attorney(s)-in-fact for all or
any of the purposes referred to herein, and may revoke any such appointment at
any time, provided that the Attorney(s)-in-fact shall be responsible for the
acts or omissions of any substitute as PFPC is for itself under the
Administration, Accounting and Investor Services Agreement by and between PFPC
and the Fund.
The Fund hereby undertakes to ratify and confirm anything the
Attorney(s)-in-fact may do pursuant to this Power of Attorney and the Fund
confirms that PFPC is entitled to sign documents on the Fund's behalf which
shall be treated for all purposes as if they have been signed in the Fund's own
name.
The Fund confirms that the Attorney(s)-in-fact may rely on any information
supplied to it/them by the Fund (or other persons on the Fund's behalf) in
relation to the performance of its/their duties and powers hereunder. The Fund
warrants that the information supplied to the Attorney(s)-in-fact is complete,
accurate and not misleading in any respect and undertake to inform the
Attorney(s)-in-fact immediately of any changes that would render the information
supplied inaccurate, incomplete or misleading.
The Fund shall indemnify the Attorney(s)-in-fact and, its/their officers,
employees, substitutes and agents and shall hold them harmless from any loss,
liability, expense or claim of any kind or nature whatsoever suffered or
incurred by it/them as a result of any action or inaction in any way relating to
or arising out of this Power of Attorney or the acts contemplated hereby (other
than as a result of the gross negligence, willful misconduct or fraud of the
Attorney(s)-in-fact) and the Fund confirms that this indemnity and hold harmless
shall survive this Power of Attorney. PFPC shall not be liable for any
consequential, special or indirect losses or damages, whether or not the
likelihood of such losses or damages was known.
The Fund declares that this Power of Attorney shall be irrevocable for the
period that PFPC is the administrator of the Fund. The Fund further declares
that neither the Attorney(s)-in-fact nor any third party shall be liable for
acting in a way as if this Power of Attorney were still valid, unless the Fund
has delivered express notice of its termination to the Attorney(s)-in-fact.
27
The Fund confirms that this Power of Attorney may be shown to any governmental
authority with jurisdiction over the Fund, the Attorney(s)-in-fact, or other
relevant persons. The Fund also confirms that it shall not, nor shall any other
person on its behalf, initiate, conduct, negotiate or arrange any of the matters
or things which the Attorney(s)-in-fact are hereby empowered to do or perform
(or attempt to do the same) without the prior written consent of the
Attorney(s)-in-fact (which shall not be unreasonably withheld or delayed).
The Fund warrants that this Power of Attorney is valid and binding upon it and
its successors and assigns for all purposes and that it has the power and
authority to enter into, and the Fund has taken all necessary [corporate]
action(s) to authorize the execution and delivery of, this Power of Attorney.
This Power of Attorney shall be governed by and construed in accordance with the
laws of the State of Delaware.
IN WITNESS WHEREOF the Fund has caused this Power of Attorney to be duly
executed this ___ day of _________, 200__.
[FUND NAME]
--------------------------
By:
Title:
Notary:
STATE OF _________________)
) ss
County / Country of _________________)
On this ________ day of __________________, 200__, before me
_________________________, a Notary Public in and for said County and State,
residing therein duly commissioned and sworn, personally appeared
____________________ personally known to me to be the ______________ of the
[corporation] described, executed the within instrument on behalf of the
[corporation] therein named, and acknowledged that such [corporation] executed
the same, pursuant to its bylaws or a resolution of its [board of directors].
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal,
the day and year in this Certificate first above written
---------------------------------------
Notary Public in and for such County and State or Country
28
