Exhibit (j)
FORM OF CUSTODY AGREEMENT
THIS AGREEMENT is made as of April 26, 2000 by and between PFPC TRUST
COMPANY, a limited purpose trust company incorporated under the laws of Delaware
("PFPC Trust"), and XXXXXXXXX FUND, L.L.C. a Delaware limited liability company
(the "Company").
W I T N E S S E T H:
WHEREAS, the Company is registered as a closed-end, non-diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Company wishes to retain PFPC Trust to provide custodian
services, and PFPC Trust wishes to furnish custodian services, either directly
or through an affiliate or affiliates, as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Company and any other
person duly authorized by the Company's Board of Managers to give Oral
Instructions and Written Instructions on behalf of the Company and
listed on the Authorized Persons Appendix attached hereto and made a
part hereof or any amendment
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thereto as may be received by PFPC Trust. An Authorized Person's scope
of authority may be limited by the Company by setting forth such
limitation in the Authorized Persons Appendix.
(d) "Board of Managers" and "Members" shall have the same meanings as set
forth in the Company's Limited Liability Company Agreement.
(e) "Book-Entry System" means Federal Reserve Treasury book-entry system
for United States and federal agency securities, its successor or
successors, and its nominee or nominees and any book-entry system
maintained by an exchange registered with the SEC under the 1934 Act.
(f) "CEA" means the Commodities Exchange Act, as amended.
(g) "Interests" mean membership interests in the Company.
(h) "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.
(i) "PFPC Trust" means PFPC Trust Company, or a subsidiary or affiliate of
PFPC Trust Company.
(j) "SEC" means the Securities and Exchange Commission.
(k) "Securities" means Securities (including, without limitation,
equities, debt obligations, options, and other "securities" as that
term is defined in Section 2(a)(36) of the 0000 Xxx) and any contracts
for forward or future delivery of any security, debt
obligation or currency, or commodity, all manner of derivative
instruments and any contracts based on any index or group of
Securities, debt
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obligations or currencies, or commodities, and any options thereon, as
well as investments in registered investment companies and private
investment funds.
(m) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(n) "Property" means:
(i) any and all Securities and other investment items which the
Company may from time to time deposit, or cause to be deposited,
with PFPC Trust or which PFPC Trust may from time to time hold
for the Company;
(ii) all income in respect of any of such Securities or other
investment items;
(iii) all proceeds of the sale of any of such Securities or investment
items; and
(iv) all proceeds of the sale of securities issued by the Company,
which are received by PFPC Trust from time to time, from or on
behalf of the Company.
(o) "Written Instructions" mean written instructions signed by two Authorized
Persons, unless specified otherwise herein, and received by PFPC Trust. The
instructions may be delivered electronically or by hand, mail, tested
telegram, cable, telex or facsimile sending device.
2. APPOINTMENT. The Company hereby appoints PFPC Trust to provide custodian
services to the Company, in accordance with the terms set forth in this
Agreement. PFPC Trust accepts such appointment and agrees to furnish such
services.
3. DELIVERY OF DOCUMENTS. The Company has provided or, where applicable, will
provide PFPC Trust with the following:
(a) certified or authenticated copies of the resolutions of the Company's
Board of Managers, approving the appointment of PFPC Trust or its
affiliates to provide services and approving this Agreement;
(b) a copy of the Company's current Form N-2 registration statement;
(c) a copy of the Limited Liability Company Agreement;
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(d) a copy of the Company's investment advisory agreement pursuant to
which CIBC Xxxxxxxxxxx Advisers, L.L.C., as Investment Adviser,
provides investment advice to the Company;
(e) a copy of the placement agent agreement with respect to the Company;
(f) a copy of any administration agreements;
(g) copies of any investor servicing agreement; and
(h) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. COMPLIANCE WITH LAWS.
PFPC Trust undertakes to comply with the applicable requirements of the
Securities Laws, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be performed
by PFPC Trust hereunder. Except as specifically set forth herein, PFPC
Trust assumes no responsibility for such compliance by the Company.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall act only
upon Oral Instructions and Written Instructions, including standing
Written Instructions related to ongoing instructions received
electronically.
(b) PFPC Trust shall be entitled to rely upon any Oral and Written
Instructions it receives from an Authorized Person (or from a person
reasonably believed by PFPC Trust to be an Authorized Person) pursuant
to this Agreement. PFPC Trust may assume that any Oral or Written
Instructions received hereunder are not in any way inconsistent with
the provisions of organizational documents of the Company or of any
vote, resolution or proceeding of the Company's Board of
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Managers or the Company's members, unless and until PFPC Trust
receives Written Instructions to the contrary.
(c) The Company agrees to forward to PFPC Trust Written Instructions
confirming Oral Instructions given on behalf of the Company (except
where such Oral Instructions are given by PFPC Trust or its
affiliates) and shall endeavor to ensure that PFPC Trust receives the
Written Instructions by the close of business on the same day that
such Oral Instructions are received. The fact that such confirming
Written Instructions are not received by PFPC Trust shall in no way
invalidate the transactions or enforceability of the transactions
authorized by the Oral Instructions. Where Oral Instructions or
Written Instructions reasonably appear to have been received from an
Authorized Person, PFPC Trust shall incur no liability to the Company
in acting upon such Oral Instructions or Written Instructions provided
that PFPC Trust's actions comply with the other provisions of this
Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Company. If PFPC Trust is in doubt as to any action it
should or should not take, PFPC Trust may request directions or
advice, including Oral Instructions or Written Instructions, from the
Company.
(b) Advice of Counsel. If PFPC Trust shall be in doubt as to any question
of law pertaining to any action it should or should not take, PFPC
Trust may request advice at its own cost from such counsel of its own
choosing.
(c) Conflicting Advice. In the event of a conflict between directions,
advice or Oral Instructions or Written Instructions PFPC Trust
receives from the Company, and
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the advice it receives from counsel, PFPC Trust shall be entitled to
rely upon and follow the advice of counsel. PFPC Trust shall promptly
inform the Company of such conflict and PFPC Trust shall refrain from
acting in the event of a conflict unless counsel advises PFPC Trust
that a failure to take action is likely to result in additional loss,
liability or expense. In the event PFPC Trust relies on the advice of
counsel, PFPC Trust remains liable for any action or omission on the
part of PFPC Trust which constitutes willful misfeasance, bad faith,
negligence or reckless disregard by PFPC Trust of any duties,
obligations or responsibilities set forth in this Agreement.
(d) Protection of PFPC Trust. PFPC Trust shall be protected in any action
it takes or does not take in reliance upon directions, advice or Oral
Instructions or Written Instructions it receives from the Company or
(to the extent permitted under clause (c) above) from counsel and
which PFPC Trust believes, in good faith, to be consistent with those
directions, advice or Oral Instructions or Written Instructions.
Nothing in this section shall be construed so as to impose an
obligation upon PFPC Trust (i) to seek such directions, advice or Oral
Instructions or Written Instructions, or (ii) to act in accordance
with such directions, advice or Oral Instructions or Written
Instructions unless, under the terms of other provisions of this
Agreement, the same is a condition of PFPC Trust's properly taking or
not taking such action. Nothing in this subsection shall excuse PFPC
Trust when an action or omission on the part of PFPC Trust constitutes
willful misfeasance, bad faith, negligence or reckless disregard by
PFPC Trust of any duties, obligations or responsibilities set forth in
this Agreement.
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7. RECORDS; VISITS. The books and records pertaining to the Company, which are
in the possession or under the control of PFPC Trust shall be the property
of the Company. Such books and records shall be prepared and maintained as
required by the 1940 Act and other applicable securities laws, rules and
regulations. The Company and its duly authorized officers, employees and
agents and the staff of the Securities and Exchange Commission shall have
access to such books and records at all times during PFPC Trust's normal
business hours. Upon the reasonable request of the Company, copies of any
such books and records shall be provided by PFPC Trust to the Company or to
an Authorized Person, at the Company's expense. No records will be
destroyed without the Company's written consent.
8. CONFIDENTIALITY. PFPC Trust agrees to keep confidential all records of the
Company and information relating to the Company and its Members, unless the
release of such records or information is otherwise consented to, in
writing, by the Company. The Company agrees that such consent shall not be
unreasonably withheld and may not be withheld where PFPC Trust may be
exposed to civil or criminal contempt proceedings or when required to
divulge such information or records to duly constituted authorities.
9. COOPERATION WITH ACCOUNTANTS. PFPC Trust shall cooperate with the Company's
independent public accountants and shall take all reasonable action in the
performance of its obligations under this Agreement to assure that the
necessary information is made available to such auditors and accountants
for the expression of their opinion, as required by the Company.
10. DISASTER RECOVERY. PFPC Trust shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable
provisions for emergency
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use of electronic data processing equipment. In the event of equipment
failures, PFPC Trust shall, at no additional expense to the Company, take
reasonable steps to minimize service interruptions. PFPC Trust shall have
no liability with respect to the loss of data or service interruptions
caused by equipment failure provided such loss or interruption is not
caused by PFPC Trust's own willful misfeasance, bad faith, negligence or
reckless disregard of its duties or obligations under this Agreement.
11. YEAR 2000 READINESS DISCLOSURE. PFPC (a) has reviewed its business and
operations as they relate to the services provided hereunder, (b) has
developed or is developing a program to remediate or replace computer
applications and systems, and (c) has developed a testing plan to test the
remediation or replacement of computer applications/systems, in each case,
to address on a timely basis the risk that certain computer
applications/systems used by PFPC may be unable to recognize and perform
properly date sensitive functions involving dates prior to, including and
after December 31, 1999, including dates such as February 29, 2000 (the
"Year 2000 Challenge"). To the best of PFPC's knowledge and belief, the
reasonably foreseeable consequences of the Year 2000 Challenge will not
adversely effect PFPC's ability to perform its duties and obligations under
this Agreement.
12. COMPENSATION. As compensation for custody services rendered by PFPC Trust
during the term of this Agreement, the Company will pay to PFPC Trust a fee
or fees as may be agreed to in writing from time to time by the Company and
PFPC Trust.
13. INDEMNIFICATION. The Company, agrees to indemnify and hold harmless PFPC
Trust and its affiliates from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation, liabilities arising
under the Securities Laws and any state
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and foreign Securities and blue sky laws, and amendments thereto), and
expenses, including (without limitation) reasonable attorneys' fees and
disbursements arising directly or indirectly from any action or omission to
act which PFPC Trust takes (i) at the request or on the direction of or in
reliance on the advice of the Company or (ii) upon Oral Instructions or
Written Instructions; provided, however, neither PFPC Trust, nor any of its
affiliates, shall be indemnified against any liability (or any expenses
incident to such liability) arising out of PFPC Trust's or its affiliates'
own willful misfeasance, bad faith, negligence or reckless disregard of its
duties under this Agreement.
14. RESPONSIBILITY OF PFPC TRUST.
(a) PFPC Trust shall be under no duty to take any action on behalf of the
Company except as necessary to fulfill its duties and obligations as
specifically set forth herein or as may be specifically agreed to by
PFPC Trust in writing. PFPC Trust shall be obligated to exercise care
and diligence in the performance of its duties hereunder, to act in
good faith and to use its best efforts, within reasonable limits, in
performing services provided for under this Agreement. PFPC Trust
shall be liable for any damages arising out of PFPC Trust's failure to
perform its duties under this Agreement to the extent such damages
arise out of PFPC Trust's willful misfeasance, bad faith, negligence
or reckless disregard of its duties under this Agreement.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC Trust shall not be liable for
losses beyond its control, provided that PFPC Trust has acted in
accordance with the standard of care set forth above; and (ii) PFPC
Trust shall not be liable for (A) the validity or
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invalidity or authority or lack thereof of any Oral Instruction or
Written Instruction, notice or other instrument which conforms to the
applicable requirements of this Agreement, and which PFPC Trust
reasonably believes to be genuine; or (B) subject to section 10,
delays or errors or loss of data occurring by reason of circumstances
beyond PFPC Trust's control, including acts of civil or military
authority, national emergencies, fire, flood, catastrophe, acts of
God, insurrection, war, riots or failure of the mails, transportation,
communication or power supply.
(c) Notwithstanding anything in this Agreement to the contrary, neither
PFPC Trust nor its affiliates shall be liable to the Company for any
consequential, special or indirect losses or damages which the Company
may incur or suffer by or as a consequence of PFPC Trust's or its
affiliates' performance of the services provided hereunder, whether or
not the likelihood of such losses or damages was known by PFPC Trust
or its affiliates.
(d) Notwithstanding anything in this Agreement to the contrary, the
Company shall not be liable to PFPC Trust for any consequential,
special or indirect losses or damages which PFPC Trust may incur or
suffer as a consequence of this Agreement, whether or not the
likelihood of such losses or damages was known by the Company.
15. DESCRIPTION OF SERVICES.
(a) Delivery of the Property. The Company will deliver or arrange for
delivery to PFPC Trust, all the Property owned by the Company,
including cash received as a result of the purchase of Interests,
during the period that is set forth in this
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Agreement. PFPC Trust will not be responsible for such property until
actual receipt.
(b) Receipt and Disbursement of Money. PFPC Trust, acting upon Written
Instructions, shall open and maintain separate accounts (each an
"Account") in the Company's name using all cash received from or for
the account of the Company, subject to the terms of this Agreement.
PFPC Trust shall make cash payments from or for the Accounts only for:
(i) purchases of Securities in the name of the Company, PFPC Trust or
PFPC Trust's nominee or a sub-custodian or nominee thereof as
provided in sub-section (j) and for which PFPC Trust has received
a copy of (A) the subscription document, or (B) the broker's or
dealer's confirmation, or (C) payee's invoice, as appropriate;
(ii) the repurchase of Interests of the Company;
(iii) payment of, subject to Written Instructions, interest, taxes,
administration, accounting, distribution, advisory, management
fees or similar expenses which are to be borne by the Company;
(iv) payment to, subject to receipt of Written Instructions, the
Company's administrator, as agent for the Members, of an amount
equal to the amount of any distributions stated in the Written
Instructions to be distributed in cash by the administrator to
Members, or, in lieu of paying the Company's administrator, PFPC
Trust may arrange for the direct payment of cash dividends and
distributions to Members in accordance with procedures mutually
agreed upon from time to time by and among the Company, PFPC
Trust and the Company's administrator.
(v) payments, upon receipt of Written Instructions signed by one
Authorized Person, in connection with the conversion, exchange or
surrender of Securities owned or subscribed to by the Company and
held pursuant to this Agreement or delivered to PFPC Trust;
(vi) payments of, subject to receipt of Written Instructions signed by
one Authorized Person, the amounts of dividends received with
respect to Securities sold short;
(vii) payments made to a sub-custodian pursuant to provisions in
sub-section (c) of this Section; and
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(viii) 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 Company.
(c) Receipt of Securities; Subcustodians.
(i) PFPC Trust shall hold all Securities received by it for the
Company in a separate account that physically segregates such
Securities from those of any other persons, firms or
corporations, except for Securities held in a Book-Entry System.
All such Securities shall be held or disposed of only upon
Written Instructions of the Company pursuant to the terms of this
Agreement. PFPC Trust shall have no power or authority to assign,
hypothecate, pledge or otherwise dispose of any such Securities
or investment, except upon the express terms of this Agreement or
upon Written Instructions authorizing the transaction. In no case
may any member of the Company's Board of Managers, or any
officer, employee or agent of the Company withdraw any
Securities.
At PFPC Trust's own expense and for its own convenience, PFPC
Trust may enter into sub-custodian agreements with other United
States banks or trust companies, which are banks as defined by
the 1940 Act, to perform duties described in this sub-section (c)
with respect to domestic assets. Such bank or trust company shall
have an aggregate capital, surplus and undivided profits,
according to its last published report, of at least one million
dollars ($1,000,000), if it is a subsidiary or affiliate of PFPC
Trust, or at least twenty million dollars ($20,000,000) if such
bank or trust company is not a subsidiary or affiliate of PFPC
Trust. In addition, such bank or trust company must be qualified
to act as custodian and agree to comply with the relevant
provisions of the 1940 Act and other applicable rules and
regulations, including but not limited to, if applicable,
standards relating to the custody of foreign Securities. Any such
arrangement will not be entered into without prior written notice
to the Company.
PFPC Trust shall remain responsible for the performance of all of its
duties as described in this Agreement and shall hold the Company
harmless from its own acts or omissions, under the standards of care
provided for herein and from the acts and omissions of any
sub-custodian chosen by PFPC Trust under the terms of this sub-section
(c).
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(d) Transactions Requiring Instructions. Upon receipt of Oral Instructions
or Written Instructions and not otherwise, PFPC Trust, directly or
through the use of a Book-Entry System, shall:
(i) deliver any Securities held for the Company against the receipt
of payment for the sale of such Securities;
(ii) execute and deliver to such persons as may be designated in such
Oral Instructions or Written Instructions, proxies, consents,
authorizations, and any other instruments received by PFPC Trust
as custodian whereby the authority of the Company as owner of any
Securities may be exercised;
(iii) deliver any Securities to the issuer thereof, or its agent, when
such Securities are called, redeemed, retired or otherwise
become payable; provided that, in any such case, the cash or
other consideration is to be delivered to PFPC Trust;
(iv) deliver any Securities held for the Company against receipt of
other Securities or cash issued or paid in connection with the
liquidation, reorganization, refinancing, tender offer, merger,
consolidation or recapitalization of any corporation, or the
exercise of any conversion privilege;
(v) deliver any Securities held for the Company to any protective
committee, reorganization committee or other person in connection
with the reorganization, refinancing, merger, consolidation,
recapitalization or sale of assets of any corporation, and
receive and hold under the terms of this Agreement such
certificates of deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such delivery;
(vi) make such transfer or exchanges of the assets of the Company and
take such other steps as shall be stated in said Oral
Instructions or Written Instructions to be for the purpose of
effectuating a duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of the
Company;
(vii) release Securities belonging to the Company to any bank or
trust company for the purpose of a pledge or hypothecation to
secure any loan incurred by the Company; provided, however,
that Securities shall be released only upon payment to PFPC
Trust of the monies borrowed, except that in cases where
additional collateral is required to secure a borrowing
already made subject to proper prior authorization, further
Securities may be released for that purpose; and repay such
loan upon redelivery to it of the Securities
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pledged or hypothecated therefor and upon surrender of the note
or notes evidencing the loan;
(viii) release and deliver Securities owned by the Company in
connection with any repurchase agreement entered into on
behalf of the Company, but only on receipt of payment
therefor; and pay out moneys of the Company in connection with
such repurchase agreements, but only upon the delivery of the
Securities;
(ix) release and deliver or exchange Securities owned by the
Company in connection with any conversion of such Securities,
pursuant to their terms, into other Securities;
(x) release and deliver Securities to a broker in connection with
the broker's custody of margin collateral relating to futures
and options transactions;
(xi) release and deliver Securities owned by the Company for the
purpose of redeeming in kind Interests of the Company upon
delivery thereof to PFPC Trust; and
(xii) release and deliver or exchange Securities owned by the
Company for other purposes.
(e) Use of Book-Entry System. PFPC Trust is authorized and instructed on
a continuous basis, to deposit in Book-Entry Systems all Securities
belonging to the Company eligible for deposit therein and to utilize
Book-Entry Systems to the extent possible in connection with
settlements of purchases and sales of Securities by the Company, and
deliveries and returns of Securities loaned, subject to repurchase
agreements or used as collateral in connection with borrowings. PFPC
Trust shall continue to perform such duties until it receives
Written Instructions or Oral Instructions authorizing contrary
actions.
PFPC Trust shall administer the Book-Entry System as follows:
(i) With respect to Securities of the Company which are maintained
in the Book-Entry System, the records of PFPC Trust shall
identify by book-entry or otherwise those Securities belonging
to the Company.
(ii) Assets of the Company deposited in the Book-Entry System will
at all times be segregated from any assets and cash controlled
by PFPC Trust in
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other than a fiduciary or custodian capacity but may be
commingled with other assets held in such capacities.
PFPC Trust will provide the Company with such reports on its own
system of internal control as the Company may reasonably request
from time to time.
(f) Registration of Securities. All Securities held for the Company
which are issued or issuable only in bearer form, except such
Securities held in the Book-Entry System, shall be held by PFPC
Trust in bearer form; all other Securities held for a Portfolio may
be registered in the name of the Company, PFPC Trust, a Book-Entry
System, a sub-custodian, or any duly appointed nominees of the
Company, PFPC Trust, Book-Entry System or sub-custodian. The Company
reserves the right to instruct PFPC Trust as to the method of
registration and safekeeping of the Securities of the Company. The
Company agrees to furnish to PFPC Trust appropriate instruments to
enable PFPC Trust to hold or deliver in proper form for transfer, or
to register in the name of its nominee or in the name of the
Book-Entry System or in the name of another appropriate entity, any
Securities which it may hold for the Company and which may from time
to time be registered in the name of the Company.
(g) Voting and Other Action. Neither PFPC Trust nor its nominee shall
vote any of the Securities held pursuant to this Agreement by or for
the account of the Company, except in accordance with Written
Instructions. PFPC Trust, directly or through the use of a
Book-Entry System, shall execute in blank and promptly deliver all
notices, proxies and proxy soliciting materials received by PFPC
Trust as custodian to the registered holder of such Securities. If
the registered holder is
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not the Company, then Written Instructions or Oral Instructions must
designate the person who owns such Securities.
(h) Transactions Not Requiring Instructions. In the absence of contrary
Written Instructions, PFPC Trust is authorized to take the following
actions:
(i) Collection of Income and Other Payments.
(A) collect and receive for the account of the Company, all
income, dividends, distributions, coupons, option
premiums, other payments and similar items, included or
to be included in the Property, and, in addition,
promptly advise the Company of such receipt and credit
such income, as collected, to the Company's custodian
account;
(B) endorse and deposit for collection, in the name of the
Company, checks, drafts, or other orders for the payment
of money;
(C) receive and hold for the account of the Company all
Securities received as a distribution on the Company's
Securities as a result of a stock dividend, share
split-up or reorganization, recapitalization,
readjustment or other rearrangement or distribution of
rights or similar Securities issued with respect to any
Securities belonging to the Company and held by PFPC
Trust hereunder;
(D) present for payment and collect the amount payable upon
all Securities which may mature or be called, redeemed,
or retired, or otherwise become payable on the date such
Securities become payable; and
(E) take any action which may be necessary and proper in
connection with the collection and receipt of such
income and other payments and the endorsement for
collection of checks, drafts, and other negotiable
instruments.
(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 the Company in accordance with
street delivery custom;
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(2) for the exchange of interim receipts or temporary
Securities for definitive Securities; and
(3) for transfer of Securities into the name of the
Company or PFPC Trust or 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) unless and until PFPC Trust receives Oral Instructions
or Written Instructions to the contrary, PFPC Trust
shall:
(1) pay all income items held by it which call for
payment upon presentation and hold the cash
received by it upon such payment for the account
of the Company;
(2) collect interest and cash dividends received, with
notice to the Company, for the account of the
Company;
(3) hold for the account of the Company all stock
dividends, rights and similar Securities issued
with respect to any Securities held by PFPC Trust;
and
(4) execute as agent on behalf of the Company all
necessary ownership certificates required by the
Internal Revenue Code or the Income Tax
Regulations of the United States Treasury
Department or under the laws of any state now or
hereafter in effect, inserting the Company's name,
on such certificate as the owner of the Securities
covered thereby, to the extent it may lawfully do
so.
(i) Segregated Accounts.
PFPC Trust shall upon receipt of Written Instructions or Oral
Instructions establish and maintain segregated accounts on its
records for and on behalf of the Company. Such accounts may be
used to transfer cash and Securities, including Securities in
a Book-Entry System:
(A) for the purposes of compliance by the Company with the
procedures required by a securities, futures or option
exchange, providing such procedures comply with the 1940
Act and any releases of the SEC relating to the
maintenance of segregated accounts by registered
investment companies; and
(B) upon receipt of Written Instructions, for other
purposes.
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(j) Purchases of Securities. PFPC Trust shall settle purchased
Securities upon receipt of Oral Instructions or Written
Instructions that specify:
(i) the name of the issuer and the title of the Securities,
including CUSIP number if applicable;
(ii) the number of Interests or the principal amount
purchased and accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase; and
(vi) the name of the person from whom or the broker through
whom the purchase was made. PFPC Trust shall upon
receipt of Securities purchased by or for the Company
pay out of the moneys held for the account of the
Company the total amount payable to the person from whom
or the broker through whom the purchase was made,
provided that the same conforms to the total amount
payable as set forth in such Oral Instructions or
Written Instructions.
(k) Sales of Securities. PFPC Trust shall settle sold Securities
upon receipt of Oral Instructions or Written Instructions that
specify:
(i) the name of the issuer and the title of the security,
including CUSIP number if applicable;
(ii) the number of Interests or principal amount sold, and
accrued interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Company upon such sale;
(vi) the name of the broker through whom or the person to
whom the sale was made; and
(vii) the location to which the security must be delivered and
delivery deadline, if any.
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PFPC Trust shall deliver the Securities upon receipt of the total
amount payable to the Company upon such sale, provided that the
total amount payable is the same as was set forth in the Oral
Instructions or Written Instructions. Notwithstanding the other
provisions hereof, PFPC Trust may accept payment in such form which
is consistent with industry practice and may deliver Securities and
arrange for payment in accordance with the customs prevailing among
dealers in Securities.
(l) Reports; Proxy Materials.
(i) PFPC Trust shall furnish to the Company the following reports:
(A) such periodic and special reports as the Company may
reasonably request;
(B) a monthly statement summarizing all transactions and
entries for the account of the Company, listing each
portfolio security belonging to the Company with the
adjusted average cost of each issue and the market value
at the end of such month and stating the cash account of
the Company including disbursements;
(C) the reports required to be furnished to the Company
pursuant to Rule 17f-4 of the 1940 Act; and
(D) such other information as may be agreed upon from time
to time between the Company and PFPC Trust.
(ii) PFPC Trust shall transmit promptly to the Company any
proxy statement, proxy material, notice of a call or
conversion, other corporate action or similar
communication received by it as custodian of the
Property. PFPC Trust shall be under no other obligation
to inform the Company as to such actions or events.
(m) Crediting of Accounts. If PFPC Trust in its sole discretion credits
an Account with respect to (a) income, dividends, distributions,
coupons, option premiums, other
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payments or similar items on a contractual payment date or otherwise
in advance of PFPC Trust's actual receipt of the amount due, (b) the
proceeds of any sale or other disposition of assets on the
contractual settlement date or otherwise in advance of PFPC Trust's
actual receipt of the amount due or (c) provisional crediting of any
amounts due, and (i) PFPC Trust is subsequently unable to collect
full and final payment for the amounts so credited within a
reasonable time period using reasonable efforts or (ii) pursuant to
standard industry practice, law or regulation PFPC Trust is required
to repay to a third party such amounts so credited, or if any
Property has been incorrectly credited, PFPC Trust shall have the
absolute right in its sole discretion without demand to reverse any
such credit or payment, to debit or deduct the amount of such credit
or payment from the Account, and to otherwise pursue recovery of any
such amounts so credited from the Company. Nothing herein or
otherwise shall require PFPC Trust to make any advances or to credit
any amounts until PFPC Trust's actual receipt thereof. The Company
hereby grants a first priority contractual possessory security
interest in and a right of setoff against the assets maintained
hereunder in the amount necessary to secure the return and payment
to PFPC Trust of any advance or credit made by PFPC Trust (including
reasonable charges related thereto).
(n) Collections. All collections of monies or other property in respect,
or which are to become part, of the Property (but not the
safekeeping thereof upon receipt by PFPC Trust) shall be at the sole
risk of the Company. If payment is not received by PFPC Trust within
a reasonable time after proper demands have been made, PFPC Trust
shall notify the Company in writing, including copies of all demand
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letters, any written responses and memoranda of all oral responses
and shall await instructions from the Company. PFPC Trust shall not
be obliged to take legal action for collection unless and until
reasonably indemnified to its satisfaction. PFPC Trust shall also
notify the Company as soon as reasonably practicable whenever income
due on Securities is not collected in due course and shall provide
the Company with periodic status reports of such income collected
after a reasonable time.
16. DURATION AND TERMINATION. This Agreement shall continue until terminated
by either party upon ninety (90) days' prior written notice to the other
party by certified mail with confirmed receipt. In the event this
Agreement is terminated (pending appointment of a successor to PFPC Trust
or vote of the Members of the Company to dissolve or to function without a
custodian of its cash, Securities or other property), PFPC Trust shall not
deliver cash, Securities or other property of the Portfolios to the
Company. It may deliver them to a bank or trust company of PFPC Trust's
choice, having an aggregate capital, surplus and undivided profits, as
shown by its last published report, of not less than twenty million
dollars ($20,000,000), as a custodian for the Company to be held under
terms similar to those of this Agreement.
17. NOTICES. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable, telex
or facsimile sending device. Notices shall be addressed (a) if to PFPC
Trust at 8800 Tinicum Bolevard, 0xx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, Attention: Xxx Xxxxxxxx; (b) if to the Company, at c/o
CIBC World Markets Corp., One World Financial Center, 000 Xxxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxxx X. Xxxxxx or (c) if to
neither of the
J-21
foregoing, at such other address as shall have been given by like notice
to the sender of any such notice or other communication by the other
party. If notice is sent by confirming telegram, cable, telex or facsimile
sending device, it shall be deemed to have been given immediately. If
notice is sent by first-class mail, it shall be deemed to have been given
five days after it has been mailed. If notice is sent by messenger, it
shall be deemed to have been given on the day it is delivered.
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. This Agreement and the rights and duties of the
parties herein may not be assigned; provided, however, that PFPC Trust may
assign its rights and delegate its duties hereunder at no additional cost
to the Company to any affiliate of or any majority-owned direct or
indirect subsidiary of PFPC Inc. or of PNC Bank Corp., provided that (i)
PFPC Trust gives the Company sixty (60) days' prior written notice of such
assignment or delegation; (ii) the assignee or delegate agrees to comply
with the relevant provisions of the Securities Laws; and (iii) PFPC Trust
and such assignee or delegate promptly provide such information as the
Company may request, and respond to such questions as the Company may ask,
relative to the assignment or delegation, (including, without limitation)
the capabilities of the assignee or delegate. Except as stated above, this
Agreement may not be assigned or delegated by any party without the
written consent of each party.
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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. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
22. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof,
provided that the parties may embody in one or more separate
documents their agreement, if any, with respect to delegated duties
and Oral Instructions.
(b) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or
effect.
(c) Governing Law. This Agreement shall be deemed to be a contract made
in Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(d) Partial Invalidity. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(e) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
J-23
(f) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC TRUST COMPANY
By:
-----------------------------
Title:
--------------------------
XXXXXXXXX FUND, L.L.C.
By:
-----------------------------
Xxxxxx X. Xxxxxx
Title: Principal Manager
--------------------------
J-24
AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
Xxxxxx Xxxxxx
----------------------- ---------------------------
Xxxxxx Xxxxx
----------------------- ---------------------------
Xxxxxxx Xxxxx
----------------------- ---------------------------
Xxxxxxxx Xxxxxxxxx
----------------------- ---------------------------
Xxxxxxx Xxxx
----------------------- ---------------------------
Xxxxxxx X'Xxxxxxx
----------------------- ---------------------------
Xxxxx XxXxxxxx
----------------------- ---------------------------
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