Exhibit (j)(i)
CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of April 1, 2005 by and among PFPC TRUST
COMPANY, a limited purpose trust company incorporated under the laws of Delaware
("PFPC Trust"), CSFB Alternative Capital Inc., a company incorporated under the
laws of Delaware ("CSFBAC"), and 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").
W I T N E S S E T H:
WHEREAS, each Fund wishes to retain PFPC Trust to provide custodian
services, and PFPC Trust wishes to furnish custodian services, either directly
or through an affiliate or affiliates, as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(c) "1940 ACT" means the Investment Company Act of 1940, as amended.
(d) "ADVISER" means CSFBAC, the investment adviser to the Funds.
(e) "AUTHORIZED PERSON" means any officer of a Fund or any other
person duly authorized by such Fund's managers to give Oral
Instructions and Written Instructions on behalf of a Fund. An
Authorized Person's scope of authority may be limited by setting
forth such limitation in a written document signed by the
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party which is authorizing the authorized person and received by
PFPC Trust.
(f) "Board of Managers" (each a "Manager") means the managers of the
Funds that are duly elected to oversee the operation of the Funds.
(g) "BOOK-ENTRY SYSTEM" means the 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.
(h) "CEA" means the Commodities Exchange Act, as amended.
(i) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC Trust
from an Authorized Person or from a person reasonably believed by
PFPC Trust to be an Authorized Person. PFPC Trust may consider and
rely upon instructions it receives from an Authorized Person via
electronic mail as Oral Instructions.
(j) "PFPC TRUST" means PFPC Trust Company or a subsidiary or affiliate
of PFPC Trust Company.
(k) "PROPERTY" means:
(i) any and all securities and other investment items which a
Fund may from time to time deposit, or cause to be
deposited, with PFPC Trust or which PFPC Trust may from
time to time hold for the 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 a Fund,
which are received by PFPC Trust from time to time, from or
on behalf of the Fund.
(l) "SEC" means the Securities and Exchange Commission.
(m) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act, the 1940 Act
and the CEA.
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(n) "UNITS" means the units of beneficial interest of a Fund.
(o) "WRITTEN INSTRUCTIONS" mean (i) written instructions signed by two
Authorized Persons (or persons reasonably believed by PFPC Trust
to be Authorized Persons) and received by PFPC Trust or (ii) trade
instructions transmitted (and received by PFPC Trust) 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 (with
respect to sub-item (ii) above) or by hand, mail or facsimile
sending device; provided, however, that if delivered by electronic
mail, it must be sent to at least two of the parties listed on the
Authorized E-Mail Recipient List attached hereto as Schedule B.
2. APPOINTMENT. CSFBAC and each Fund hereby appoint PFPC Trust to provide
custodian services to each Fund as set forth herein, and PFPC Trust
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 Trust whereby such additional Fund and PFPC Trust 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 accession). 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 Fund without such termination affecting the
rights or obligations of any other Fund pursuant to the terms of this
Agreement.
3. COMPLIANCE WITH LAWS.
With respect to each Fund, PFPC Trust undertakes to comply with material
applicable
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requirements of the Securities Laws and material laws, rules and
regulations of governmental authorities having jurisdiction with respect
to the duties to be performed by PFPC Trust hereunder. Except as
specifically set forth herein or in a separate agreement signed by PFPC
Trust, PFPC Trust assumes no responsibility for such compliance by a
Fund.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall act
only upon Oral Instructions or Written Instructions.
(b) PFPC Trust shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or from
a person reasonably believed in good faith by PFPC Trust to be an
Authorized Person) pursuant to this Agreement. PFPC Trust may
assume that any 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 Funds' managers or members, unless and until
PFPC Trust receives Written Instructions to the contrary or unless
PFPC has actual knowledge to the contrary.
(c) CSFBAC and each Fund agree to forward to PFPC Trust Written
Instructions confirming Oral Instructions (except where such Oral
Instructions are given by PFPC Trust or its affiliates) so that
PFPC Trust receives the Written Instructions by the close of
business on the same day that such Oral Instructions are received.
The fact that such confirming Written Instructions are not
received by PFPC Trust or differ from the Oral Instructions shall
in no way invalidate the transactions or
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enforceability of the transactions authorized by the Oral
Instructions or PFPC Trust's ability to rely upon such Oral
Instructions. Without prejudice to the foregoing, where PFPC Trust
is aware of a material discrepancy between Oral Instructions and
confirming Written Instructions, PFPC Trust shall promptly notify
CSFBAC or the Fund, as appropriate, of such discrepancy. Where
Oral Instructions of Written Instructions reasonably appear to
have been received from an Authorized Person, PFPC Trust shall
incur no liability to CSFBAC or the Fund, as appropriate, in
acting upon such Oral Instructions or Written Instructions
provided that PFPC Trust's actions comply with the other
provisions of this Agreement.
5. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If PFPC Trust is in doubt as to any action it
should or should not take with respect to the duties to be
performed by PFPC Trust hereunder, PFPC Trust may request
directions or advice, including Oral Instructions or Written
Instructions, from a Fund or CSFBAC acting in its capacity as
investment adviser to the Fund.
(b) ADVICE OF COUNSEL. If PFPC Trust shall be in doubt as to any
question of law pertaining to any action it should or should not
take with respect to the duties to be performed by PFPC Trust
hereunder, PFPC Trust may request advice from counsel of its own
choosing (who may be counsel for a Fund, the Fund's investment
adviser,
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General Partner or Manager or PFPC Trust, at the option of PFPC
Trust). PFPC Trust shall notify the Fund or CSFBAC, as
appropriate, if such advice is requested from counsel for a Fund,
the Fund's investment adviser, General Partner or Manager, within
a reasonable time after such request is made. The cost of counsel
pursuant to this provision shall be borne by PFPC Trust unless the
advice is sought from counsel for a Fund or the Fund's investment
adviser, General Partner or Manager.
(c) CONFLICTING ADVICE. In the event of a conflict between directions
or advice or Oral Instructions or Written Instructions PFPC Trust
receives from a Fund, and the advice it receives from counsel,
PFPC Trust shall be entitled to rely upon and follow the advice of
counsel. With respect to an issue of compliance with law or legal
requirements, PFPC Trust shall be entitled 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 within a reasonable time
and in a reasonable manner.
(d) PROTECTION OF PFPC TRUST. Subject to the second sentence of
Section 12 and except as otherwise specifically provided in a
separate agreement, PFPC Trust shall be indemnified severally by
each Fund (as applicable) and without liability for any action
PFPC Trust takes or does not take in good faith and in reliance
upon directions or advice or Oral Instructions or Written
Instructions PFPC Trust receives from or on behalf of CSFBAC or a
Fund or from counsel and which PFPC Trust 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 Trust
(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
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Instructions, unless under the terms of other provisions of this
Agreement, the same is a condition of PFPC Trust's properly taking
or not taking such action.
6. RECORDS; VISITS.
(a) The books and records pertaining to a Fund, which are in the
possession or under the control of PFPC Trust, 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 Trust's normal business hours. Upon the
reasonable request of the Fund, copies of any such books and
records shall be provided by PFPC Trust to the Fund or to an
authorized representative of the Fund, at the expense of CSFBAC,
such Fund or Funds (as applicable), provided that upon termination
of this Agreement the original records of the Funds still under
the control of PFPC Trust shall be delivered to the successor fund
custodian, 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 Trust shall provide to a Fund any Report on Controls Placed
in Operation and Tests of Operating Effectiveness which PFPC Trust
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 Trust receives the SAS 70
Report from its independent accountants, provided that the Fund
has requested such SAS 70 Report.
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7. CONFIDENTIALITY.
(a) Each of (i) PFPC Trust and (ii) CSFBAC and the Funds 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, 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 Trust, their respective subsidiaries and affiliated
companies; (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 Trust or their respective affiliates 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 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 written
notice of the same, to the
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extent such notice is permitted); (f) release of such information
by PFPC Trust is necessary 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; or (h) it has been or is independently developed or
obtained by the receiving party.
(b) If any party to this Agreement (or any company affiliated with a
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 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. COOPERATION WITH ACCOUNTANTS. PFPC Trust shall cooperate with each Fund's
independent public accountants and shall take all reasonable action to
make any requested information available to such accountants as
reasonably requested by each Fund.
9. PFPC SYSTEM. PFPC Trust shall retain title to and ownership of any and
all data bases, computer programs, screen formats, report formats,
interactive design techniques,
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derivative works, inventions, discoveries, patentable or copyrightable
matters, concepts, expertise, patents, copyrights, trade secrets, and
other related legal rights utilized by PFPC Trust in connection with the
services provided by PFPC Trust to the Funds. Nothing in this Agreement
will grant to PFPC Trust title to or ownership of any 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, or other related legal rights belonging to CSFBAC, the Funds, or
their affiliates.
10. DISASTER RECOVERY. PFPC Trust shall enter into and shall maintain in
effect with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to
the extent appropriate equipment is available. PFPC Trust will, on
request, provide a Fund with a summary of PFPC Trust's disaster recovery
procedures. In the event of equipment failures, PFPC Trust shall, at no
additional expense to any Fund, take reasonable steps to minimize service
interruptions. PFPC Trust shall have no liability with respect to the
loss of data or service interruptions caused by equipment failure
provided such loss or interruption is not caused by PFPC Trust'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 custody services rendered by PFPC Trust during
the term of this Agreement, the Funds will pay to PFPC Trust a fee
or fees as may be agreed to in writing from time to time by the
Funds and PFPC Trust. CSFBAC and each Fund acknowledge that PFPC
Trust may receive float benefits in connection with maintaining
certain accounts required to provide services under this
Agreement.
(b) Each Fund hereby represents and warrants to PFPC Trust that (i)
the terms of this Agreement, (ii) the fees and expenses associated
with this Agreement, and (iii) any benefits accruing to PFPC Trust
or to the adviser or sponsor to the Funds in
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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
Trust to such adviser or sponsor or any affiliate of the Funds
relating to this Agreement have been fully disclosed to the Board
of Managers of the Funds and that, if required by applicable law,
such Board of Managers has approved or will approve the terms of
this Agreement, any such fees and expenses, and any such benefits.
12. INDEMNIFICATION.
(a) Each Fund agrees severally and not jointly to indemnify and hold
harmless PFPC Trust and its affiliates, including their respective
officers, directors, agents and employees from all taxes, charges,
expenses, assessments, claims and liabilities (including, without
limitation, reasonable attorneys' fees and disbursements and
liabilities arising under the Securities Laws and any state and
foreign securities) (collectively, "Losses") arising directly or
indirectly from any action or omission to act which PFPC Trust
takes in connection with the provision of services hereunder to
the extent provided herein. Notwithstanding anything to the
contrary contained herein, neither PFPC Trust, nor any of its
affiliates, shall be indemnified from Losses and against any
liability (or any expenses incident to such liability) caused by
PFPC Trust's or its affiliates' own willful misfeasance or willful
misconduct, bad faith, gross negligence or reckless disregard in
the performance of PFPC Trust'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 Trust 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 Trust pursuant to this Agreement
but only if such liability arises from
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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.
13. RESPONSIBILITY OF PFPC TRUST.
(a) PFPC Trust shall be under no duty to take any action hereunder on
behalf of CSFBAC or a Fund except as specifically set forth herein
or as may be specifically agreed to by PFPC Trust, CSFBAC and a
Fund in writing and signed by PFPC Trust. PFPC Trust 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 Trust shall not be liable for losses, delays, failure,
errors, interruption or loss of data occurring directly or
indirectly by reason of circumstances beyond its reasonable
control, including without limitation acts of God; action or
inaction of civil or military authority; public enemy; war;
terrorism; riot; fire; flood; sabotage; epidemics; labor disputes;
civil commotion; interruption, loss or malfunction of public
utilities, public 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 Trust 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 Trust shall not be under any
duty or obligation to inquire into and shall not be liable for the
validity or invalidity, authority or lack thereof, or truthfulness
or accuracy or lack thereof, of any instruction, direction,
notice, instrument or other information which PFPC Trust
reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, no
party to this
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Agreement 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.
(d) Each party shall have a duty to use commercially reasonable
efforts to mitigate damages for which the other party may become
responsible.
(e) Notwithstanding anything in this Agreement to the contrary (other
than as specifically provided in Section 14(h)(ii)(B)(4) and
Section 14(h)(iii)(A) of this Agreement), each Fund shall be
responsible for all filings, tax returns and reports on any
transactions undertaken pursuant to this Agreement, or in respect
of the Property or any collections undertaken pursuant to this
Agreement, which may be requested by any relevant authority. In
addition, each Fund shall be responsible for the payment of all
taxes and similar items (including without limitation penalties
and interest related thereto).
(f) The provisions of this Section 13 shall survive termination of
this Agreement.
(g) Notwithstanding anything in this Agreement to the contrary, PFPC
Trust shall have no liability either for any error or omission of
any of its predecessors as servicer on behalf of any Fund or for
any failure to discover any such error or omission.
14. DESCRIPTION OF SERVICES.
(a) DELIVERY OF THE PROPERTY. Each Fund will deliver or arrange for
delivery to PFPC Trust, all the Property owned by it, including
cash received as a result of the distribution of Units, during the
term of this Agreement. PFPC Trust will not be responsible for any
assets until actual receipt.
(b) RECEIPT AND DISBURSEMENT OF MONEY. PFPC Trust, acting upon Written
Instructions, shall open and maintain a separate account for each
Fund (each an "Account") and shall maintain in the Account all
cash and other assets received from or for such Fund specifically
designated to such Account.
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PFPC Trust shall make cash payments from or for an Account of only
for:
(i) purchases of securities in the name of a Fund, PFPC Trust,
PFPC Trust's nominee or a sub-custodian or nominee thereof
as provided in sub-section (j) and for which PFPC Trust has
received a copy of the broker's or dealer's confirmation or
payee's invoice, as appropriate;
(ii) purchase or redemption of Units delivered to PFPC Trust;
(iii) payment of, subject to Written Instructions, interest,
taxes (provided that tax which PFPC Trust considers is
required to be deducted or withheld "at source" will be
governed by Section 14(h)(iii)(B) of this Agreement),
administration, accounting, distribution, advisory and
management fees which are to be borne by a Fund;
(iv) payment to, subject to receipt of Written Instructions, the
transfer agent of a particular Fund, 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 such Fund's transfer agent, PFPC Trust
may arrange for the direct payment of cash dividends and
distributions to members in accordance with procedures
mutually agreed upon from time to time by and among the
Fund, PFPC Trust and such 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 a Fund and held by or
delivered to PFPC Trust;
(vi) payments of the amounts of dividends received with respect
to securities sold short;
(vii) payments to PFPC Trust 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.
PFPC Trust is hereby authorized to endorse and collect all checks, drafts
or other orders for the payment of money received as custodian for the
Accounts.
(c) RECEIPT OF SECURITIES; SUBCUSTODIANS.
(i) PFPC Trust (and any sub-custodian) shall hold all
securities received by it
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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 pursuant to the terms of this
Agreement. PFPC Trust shall have no power or authority to
assign, hypothecate, pledge or otherwise dispose of any
such securities or investment, except upon the express
terms of this Agreement or upon Written Instructions
authorizing the transaction. In no case may any member of
the Funds' Managers, or any officer, employee or agent of
the Funds withdraw any securities.
At PFPC Trust's own expense and for its own convenience,
PFPC Trust 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 aggregate capital,
surplus and undivided profits, according to its last
published report, of at least one million dollars
($1,000,000), if it is a subsidiary or affiliate of PFPC
Trust, or at least fifty million dollars ($50,000,000) if
such bank or trust company is not a subsidiary or affiliate
of PFPC Trust. In addition, such bank or trust company must
be qualified to act as custodian and agree to comply with
the relevant provisions of applicable rules and
regulations. Any such arrangement will not be entered into
without prior written notice to the Funds (or as otherwise
provided in the 1940 Act).
In addition, PFPC Trust may enter into arrangements with
sub-custodians with respect to services regarding foreign
assets. Any such arrangement will not be entered into
without prior written notice to the Funds (or as otherwise
provided in the 1940 Act).
PFPC Trust shall remain responsible for the acts and
omissions of any sub-custodian chosen by PFPC Trust under
the terms of this sub-section (c) to the same extent that
PFPC Trust is responsible for its own acts and omissions
under this Agreement.
(d) TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of Oral
Instructions or Written Instructions and not otherwise, PFPC Trust
shall:
(i) deliver any securities held for a 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
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any other instruments whereby the authority of a Fund as
owner of any securities may be exercised;
(iii) deliver any securities held for a Fund 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 PFPC Trust;
(iv) deliver any securities held for a 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 person, or
the exercise of any conversion privilege;
(v) deliver any securities held for a 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 a 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 a Fund to any bank or trust
company for the purpose of a pledge or hypothecation to
secure any loan incurred by such Fund; provided, however,
that securities shall be released only upon payment to PFPC
Trust of the monies borrowed, except that in cases where
additional collateral is required to secure a borrowing
already made subject to proper prior authorization, further
securities may be released for that purpose; and repay such
loan upon redelivery to it of the securities pledged or
hypothecated therefor and upon surrender of the note or
notes evidencing the loan;
(viii) release and deliver securities owned by a Fund in
connection with any repurchase agreement entered into by
such 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 a Fund
in connection with any conversion of such securities,
pursuant to their terms, into other securities;
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(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 a Fund for the
purpose of redeeming in kind Units of such Fund upon
delivery thereof to PFPC Trust; and
(xii) release and deliver or exchange securities owned by a Fund
for other purposes.
PFPC Trust 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. PFPC Trust will
deposit in Book-Entry Systems and other depositories all
securities belonging to the Funds eligible for deposit therein and
will utilize Book-Entry Systems and other depositories to the
extent possible in connection with settlements of purchases and
sales of securities by the Funds, and deliveries and returns of
securities loaned, subject to repurchase agreements or used as
collateral in connection with borrowings. PFPC Trust shall
continue to perform such duties until it receives Written
Instructions or Oral Instructions authorizing contrary actions.
Notwithstanding anything in this Agreement to the contrary, PFPC
Trust's use of a Book-Entry System shall comply with the
requirements of Rule 17f-4 under the 1940 Act to the extent
applicable to any Fund.
PFPC Trust shall administer a Book-Entry System or other depository as
follows:
(i) With respect to securities of each Fund which are
maintained in a Book-Entry System or another depository,
the records of PFPC Trust shall identify by book-entry or
otherwise those securities as belonging to each Fund.
(ii) Assets of each Fund deposited in a Book-Entry System or
another
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depository will (to the extent consistent with applicable
law and standard practice) at all times be segregated from
any assets and cash controlled by PFPC Trust in other than
a fiduciary or custodian capacity but may be commingled
with other assets held in such capacities.
PFPC Trust will provide each 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 a Fund which
are issued or issuable only in bearer form, except such securities
maintained in the Book-Entry System or in another depository,
shall be held by PFPC Trust in bearer form; all other securities
maintained for a Fund may be registered in the name of such Fund,
PFPC Trust, a Book-Entry System, another depository, a
sub-custodian, or any duly appointed nominee of the Fund, PFPC
Trust, Book-Entry System, depository or sub-custodian. Each Fund
reserves the right to instruct PFPC Trust as to the method of
registration and safekeeping of the securities of such Fund. Each
Fund agrees to furnish to PFPC Trust appropriate instruments to
enable PFPC Trust to maintain 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 maintain for the Accounts.
With respect to uncertificated securities which are registered in
the name of the Fund (or a nominee thereof), PFPC Trust will
reflect such securities on its records based upon the holdings
information provided to it by the issuer of such securities, but
notwithstanding anything in this Agreement to the contrary PFPC
Trust shall not be obligated to safekeep such securities or to
perform other duties with respect to such securities other than to
make payment for the purchase of such securities
18
upon receipt of Oral Instructions or Written Instructions, accept
in sale proceeds received by PFPC Trust upon the sale of such
securities of which PFPC Trust is informed pursuant to Oral
Instructions or Written Instructions, and accept in other
distributions received by PFPC Trust with respect to such
securities or reflect on its records any reinvested distributions
with respect to such securities of which it is informed by the
issuer of the securities.
(g) VOTING AND OTHER ACTION. Neither PFPC Trust nor its nominee shall
vote any of the securities held pursuant to this Agreement by or
for the account of a Fund, except in accordance with Written
Instructions. PFPC Trust, directly or through the use of another
entity, shall execute in blank and promptly deliver all notices,
proxies and proxy soliciting materials received by PFPC Trust as
custodian of the Property to the registered holder of such
securities. If the registered holder is not a Fund, then Written
Instructions or Oral Instructions must designate the person who
owns such securities.
(h) TRANSACTIONS NOT REQUIRING INSTRUCTIONS. Notwithstanding anything
in this Agreement requiring instructions in order to take a
particular action, in the absence of a contrary Written
Instruction, PFPC Trust is authorized to take the following
actions without the need for instructions:
(i) COLLECTION OF INCOME AND OTHER PAYMENTS.
(A) collect and receive for the account of each 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
each Fund of such receipt and credit such income to each
Fund's custodian account;
19
(B) endorse and deposit for collection, in the name of each
Fund, checks, drafts, or other orders for the payment of
money;
(C) receive and hold for the account of each Fund all
securities received as a distribution on such 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 a Fund and held by PFPC Trust hereunder;
(D) present for payment and collect the amount payable upon all
securities which may mature or be called, redeemed, 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) PFPC Trust 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 a 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 PFPC Trust or a sub-custodian or a nominee of one
of the foregoing, or for exchange of securities for
a different number of bonds, certificates, or other
evidence, representing the same aggregate face
amount or number of units bearing the same interest
rate, maturity date and call provisions, if any;
provided that, in any such case, the new securities
are to be delivered to PFPC Trust.
(B) PFPC Trust shall:
(1) pay all income items held by it which call for
payment upon
20
presentation and hold the cash received by it upon
such payment for the account of each Fund;
(2) collect interest and cash dividends received, with
notice to the Fund, to the Account of each Fund;
(3) hold for the account of each Fund all stock
dividends, rights and similar securities issued with
respect to any securities held by PFPC Trust; and
(4) subject to receipt of such documentation and
information as PFPC Trust may request, execute as
agent on behalf of each 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 such 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
PFPC Trust may request, PFPC Trust will, in such
jurisdictions as PFPC Trust 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 PFPC Trust will not be liable for
failure to obtain any particular relief in a particular
jurisdiction); and
(B) PFPC Trust is authorized to deduct or withhold any sum in
respect of tax which PFPC Trust considers is required to be
deducted or withheld "at source" by any relevant law or
practice.
(i) SEGREGATED ACCOUNTS.
(i) PFPC Trust shall upon receipt of Written Instructions or
Oral Instructions establish and maintain segregated
accounts on its records for and on behalf of each Fund.
Such accounts may be used to transfer cash and securities,
including securities in a Book-Entry System or other
depository:
(A) for the purposes of compliance by the Funds with the
procedures required by a securities or option
exchange, provided such procedures comply with the
1940 Act and any releases of the SEC relating to the
maintenance of segregated accounts by registered
investment companies; and
21
(B) upon receipt of Written Instructions, for other
purposes.
(ii) PFPC Trust shall arrange for the establishment of XXX
custodian accounts for such shareholders holding Units
through XXX accounts, in accordance with the Fund's
prospectuses, the Internal Revenue Code of 1986, as amended
(including regulations promulgated thereunder), and with
such other procedures as are mutually agreed upon from time
to time by and among the Fund, PFPC Trust and the Fund's
transfer agent.
(j) PURCHASES OF SECURITIES. PFPC Trust shall settle purchased
securities upon receipt of Oral Instructions or Written
Instructions that specify:
(i) the name of the issuer and the title of the securities,
including CUSIP number if applicable;
(ii) the number of shares 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;
(vi) the Fund involved; and
(vii) the name of the person from whom or the broker through whom
the purchase was made. PFPC Trust shall upon receipt of
securities purchased by or for a 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. PFPC Trust shall settle sold securities upon
receipt of Oral Instructions or Written Instructions that specify:
(i) the name of the issuer and the title of the security,
including CUSIP number if applicable;
(ii) the number of shares or principal amount sold, and accrued
interest, if any;
22
(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;
(vii) the location to which the security must be delivered and
delivery deadline, if any; and
(viii) the Fund involved.
PFPC Trust 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 anything to the contrary in this Agreement,
PFPC Trust may accept payment in such form as is consistent with standard
industry practice and may deliver assets and arrange for payment in
accordance with standard market practice.
(l) REPORTS; PROXY MATERIALS.
(i) PFPC Trust shall furnish to each 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 each Fund, listing each
portfolio security belonging to each Fund (with the
corresponding security identification number) held
at the end of such month and stating the cash
balance of each Fund at the end of such month.
(C) the reports required to be furnished to each 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 PFPC Trust.
23
(ii) PFPC Trust shall transmit promptly to each Fund any proxy
statement, proxy material, notice of a call or conversion
or similar communication received by it as custodian of the
Property. PFPC Trust shall be under no other obligation to
inform each Fund as to such actions or events. For
clarification, upon termination of this Agreement PFPC
Trust shall have no responsibility to transmit such
material or to inform any Fund or any other person of such
actions or events.
(m) CREDITING OF ACCOUNTS. PFPC Trust may in its sole discretion
credit an Account with respect to income, dividends,
distributions, coupons, option premiums, other payments or similar
items prior to PFPC Trust's actual receipt thereof, and in
addition PFPC Trust may in its sole discretion credit or debit the
assets in an Account on a contractual settlement date with respect
to any sale, exchange or purchase applicable to the Account;
provided that nothing herein or otherwise shall require PFPC Trust
to make any advances or to credit any amounts until PFPC Trust's
actual receipt thereof. If PFPC Trust credits an Account with
respect to (a) income, dividends, distributions, coupons, option
premiums, other payments or similar items on a contractual payment
date or otherwise in advance of PFPC Trust's actual receipt of the
amount due, (b) the proceeds of any sale or other disposition of
assets on the contractual settlement date or otherwise in advance
of PFPC Trust's actual receipt of the amount due or (c)
provisional crediting of any amounts due, and (i) PFPC Trust is
subsequently unable to collect full and final payment for the
amounts so credited within a reasonable time period using
reasonable efforts or (ii) pursuant to standard industry practice,
law or
24
regulation PFPC Trust is required to repay to a third party such
amounts so credited, or if any Property has been incorrectly
credited, PFPC Trust shall have the absolute right in its sole
discretion without demand to reverse any such credit or payment,
to debit or deduct the amount of such credit or payment from the
Account, and to otherwise pursue recovery of any such amounts so
credited from the Fund. Each Fund hereby grants to PFPC Trust and
to each sub-custodian utilized by PFPC Trust in connection with
providing services to the Fund 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 PFPC Trust and to each such
sub-custodian of any advance or credit made by PFPC Trust and/or
by such sub-custodian (including agreed upon charges related
thereto) to such Account. Notwithstanding anything in this
Agreement to the contrary, PFPC Trust shall be entitled to assign
any rights it has under this sub-section (m) to any sub-custodian
utilized by PFPC Trust in connection with providing services to
the Fund which sub-custodian makes any credits or advances with
respect to the Fund.
(n) COLLECTIONS. All collections of monies or other property in
respect, or which are to become part, of the Property (but not the
safekeeping thereof upon receipt by PFPC Trust) shall be at the
sole risk of the Funds. If payment is not received by PFPC Trust
within a reasonable time after proper demands have been made, PFPC
Trust shall notify the affected 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. PFPC
Trust shall not be obliged to take legal action
25
for collection unless and until reasonably indemnified to its
satisfaction. PFPC Trust shall also notify the affected Fund 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) EXCESS CASH SWEEP. PFPC Trust will, consistent with applicable
law, sweep any net excess cash balances daily into an investment
vehicle or other instrument designated in writing by the Funds, so
long as the investment vehicle or instrument is acceptable to PFPC
Trust, subject to a fee, paid to PFPC Trust for such service, to
be agreed between the parties. Such investment vehicle or
instrument may be offered by an affiliate of PFPC Trust or by a
PFPC Trust client and PFPC Trust may receive compensation
therefrom.
(p) FOREIGN EXCHANGE. PFPC Trust 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.
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 two (2) 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 Trust may terminate this Agreement effective at the
end of the
26
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 one hundred and eighty
(180) 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 Trust, 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 CSFBAC and 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
with respect to the Defaulting Party by giving ninety (90) 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 to obligations of the parties prior to such termination or
rights of PFPC Trust 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-
27
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 (the "Non-Offending Party") 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. Nothing herein shall grant CSFBAC and a particular
Fund(s) the right to terminate this Agreement with respect to PFPC
Trust if PFPC Trust is a Non-Offending Party.
(d) In the event this Agreement is terminated (pending appointment of
a successor to PFPC Trust or vote of the members of a Fund to
dissolve or to function without a custodian of its cash,
securities or other property), PFPC Trust shall not deliver cash,
securities or other property of the Fund to the Fund. It may
deliver them to a bank or trust company of PFPC Trust's choice,
having aggregate capital, surplus and undivided profits, as shown
by its last published report, of not less than fifty million
dollars ($50,000,000), as a custodian for the Fund to be held
under terms similar to those of this Agreement; provided, however,
that in the event this Agreement is terminated by PFPC Trust, PFPC
Trust shall not make such delivery until the earlier of thirty
(30) days after termination hereof or the Fund's
28
appointment of a successor custodian. PFPC Trust shall not be
required to make any delivery or payment of assets upon
termination until full payment shall have been made to PFPC Trust
of all of its fees, compensation, costs and expenses (including
without limitation fees and expenses associated with deconversion
or conversion to another service provider and other trailing
expenses incurred by PFPC Trust); provided, however, that PFPC
Trust shall provide the Fund, at the time of such delivery or
payment of assets, with a reasonable estimate of such
deconversion, conversion and other trailing fees and expenses in
order to enable the Fund to make full payment to PFPC Trust of all
of its fees, compensation, costs and expenses, and PFPC Trust
subsequently shall refund to the Fund any overpayment of expenses,
or assess the Fund for any underpayment of expenses, after
reconciling actual expenses to estimated expenses. PFPC Trust
shall have a first priority contractual possessory security
interest in and shall have a right of setoff against the Property
as security for the payment of such fees, compensation, costs and
expenses.
17. NOTICES. Notices shall be addressed (a) if to PFPC Trust at 0000 Xxxxxxx
Xxxxxxxxx, 0xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxx
Xxxxxxxx; (b) if to any Fund, at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 Attention: HFI Middle Office; (c) if to CSFBAC, at Eleven
Madison Avenue, New York, New York 10010, Attention: HFI Middle Office,
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
electronic delivery, hand or facsimile sending device, it shall be deemed
to have been given immediately. If notice is sent by first-class
29
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. DELEGATION; ASSIGNMENT. PFPC Trust may assign its rights and delegate its
duties hereunder with respect to a Fund to any affiliate of PFPC Trust or
of The PNC Financial Services Group, Inc., provided that PFPC Trust gives
such Fund ninety (90) 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.
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, PFPC Trust hereby disclaims all representations
and warranties, express or implied, made to CSFBAC, a Fund or any
other person, regarding
30
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 Trust
disclaims any warranty of title or non-infringement except as
otherwise set forth in this Agreement.
(c) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, each Fund agrees to
provide PFPC Trust with prior notice to evaluate the impact of any
modifications to its registration statement or adopt any policies
(a "Material Modification") which would materially affect the
obligations or responsibilities of PFPC Trust. In the event of a
Material Modification PFPC Trust 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 ninety (90) days written notice.
(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) INFORMATION. Each Fund will provide such information and
documentation as PFPC Trust may reasonably request in connection
with services provided by PFPC Trust 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 conflicts of law.
(g) PARTIAL INVALIDITY. If any provision of this Agreement shall be
held or made
31
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) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof
by such party.
(j) 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. Consistent with this
requirement, PFPC Trust may request (or may have already
requested) CSFBAC's and each 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 Trust may also ask (and may have already asked) for
additional identifying information, and PFPC Trust may take steps
(and may have already taken steps) to verify the authenticity and
accuracy of these data elements.
(k) PFPC Trust 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
Trust represents that it shall (i) upon reasonable request,
provide a copy of its anti-money laundering program (or a summary
thereof) to
32
CSFBAC and, if appropriate, the Funds, and (ii) upon request,
provide to the Funds, a copy of the attestation letter received by
PFPC Trust from an independent auditor in connection with the
annual audit performed with respect to PFPC Trust's Anti-Money
Laundering program.
(l) PFPC Trust 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 Trust 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 Trust is entering into a
separate arrangement with CSFBAC and each separate Fund.
33
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC TRUST COMPANY
/s/ XXXXX X. XXXXX
---------------------------
By: Xxxxx X. Xxxxx
Title: Vice President
CSFB Alternative Capital, Inc.
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: Managing Director
CSFB Alternative Capital Multi-Strategy Master
Fund, LLC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Event Driven
Master Fund, LLC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Long/Short Equity Master
Fund, LLC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
34
CSFB Alternative Capital Relative Value Master
Fund, LLC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: Managing Director
CSFB Alternative Capital Tactical Trading Master Fund,
LLC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: Managing Director
CSFB Alternative Capital Multi-Strategy Fund, LLC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: Managing Director
CSFB Alternative Capital Event Driven Fund,
LLC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: Managing Director
CSFB Alternative Capital Long/Short Equity Fund,
LLC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: Managing Director
CSFB Alternative Capital Relative Value Fund,
LLC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: Managing Director
CSFB Alternative Capital Tactical Trading Fund,
LLC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: Managing Director
35
CSFB Alternative Capital Multi-Strategy
Institutional Fund, LLC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Event Driven Institutional
Fund, LLC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Long/Short Equity
Institutional Fund, LLC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Relative Value
Institutional Fund, LLC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Tactical Trading
Institutional Fund, LLC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Multi-Strategy Offshore
Institutional Fund, LDC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
36
CSFB Alternative Capital Event Driven Offshore
Institutional Fund, LDC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Long/Short Equity
Offshore Institutional Fund, LDC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Relative Value Offshore
Institutional Fund, LDC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Tactical Trading Offshore
Institutional Fund, LDC
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
Multi-Strategy Private Fund, LP
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
Long/Short Equity Private Fund, LP
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
37
Multi-Strategy Private (Offshore) Fund Limited
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
Global Diversified Investors I Limited
/s/ XXXXX X. XXX
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
Global Diversified Investors II Limited
/s/ XXXXX X. XXX
----------------------------
By: Xxxxx X. Xxx
Title: President and Manager
Healthtech Long/Short Investors Limited
/s/ XXXXX X. XXX
----------------------------
By: Xxxxx X. Xxx
Title: President and Manager
DLJ Technology Long/Short Investors Limited
/s/ XXXXX X. XXX
-----------------------------
By: Xxxxx X. Xxx
Title: President and Manager
38
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
Multi-Strategy Private Fund, LP
Long/Short Equity Private Fund, LP
OFFSHORE UNREGISTERED FEEDER FUNDS
Multi-Strategy Private (Offshore) Fund Limited
Global Diversified Investors I Limited
Global Diversified Investors II Limited
Healthtech Long/Short Investors Limited
DLJ Technology Long/Short Investors Limited
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