Exhibit (j)(i)
FORM OF CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of ___________, 2005, by and among each of the
entities listed on Schedule A, attached hereto and made a part hereof as may be
amended from time to time (each a "Fund" and collectively, the "Funds") and PFPC
INC., a Massachusetts corporation ("PFPC").
W I T N E S S E T H:
WHEREAS, the Funds are registered as a closed-end, non-diversified
management investment companies under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Funds wish 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 a Fund and any other person
authorized by the Fund to give Oral or Written Instructions on behalf
of the Funds. An Authorized Person's scope of authority may be limited
by setting forth such limitation in a written document signed by both
parties hereto.
(d) "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
registered with the SEC under the 1934 Act.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "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, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via electronic mail
as Oral Instructions.
(g) "PFPC TRUST" means PFPC Trust Company or a subsidiary or affiliate of
PFPC Trust Company.
(h) "SEC" means the Securities and Exchange Commission.
(i) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(j) "PROPERTY" means:
(i) any and all securities and other investment items which the
Funds 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 Funds;
(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 Funds,
which are received by PFPC Trust from time to time, from or on
behalf of the Funds.
(k) "UNITS" mean the units of beneficial interest of any series or class
of the Funds.
(k) "WRITTEN INSTRUCTIONS" mean (i) written instructions signed by two
Authorized
2
Persons (or persons reasonably believed by PFPC Trust to be Authorized
Persons) and received by PFPC Trust or (ii) trade instructions
transmitted by means of an electronic transaction reporting system
which requires the use of a password or other authorized identifier in
order to gain access. The instructions may be delivered electronically
or by hand, mail or facsimile sending device.
2. APPOINTMENT. The Funds hereby appoint PFPC Trust to provide custodian
services to the Funds as set forth herein, on behalf of each of its
investment portfolios (each, a "Portfolio"), and PFPC Trust accepts such
appointment and agrees to furnish such services.
3. COMPLIANCE WITH LAWS.
PFPC Trust undertakes to comply with material applicable 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, PFPC Trust assumes no responsibility for such compliance by the
Funds or any other entity.
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 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 Funds or of any vote, resolution or
proceeding of the Funds' directors or of the Funds'
3
members, unless and until PFPC Trust receives Written Instructions to
the contrary, PFPC Trust has actual knowledge to the contrary, or such
Oral or Written Instructions are outside the scope of the authority of
the Authorized Person giving the instructions and the Funds have
previously given PFPC Trust written notice of the relevant limitation
on such Authorized Person's authority and such Oral or Written
Instructions clearly exceed such Authorized Person's authority.
(c) The Funds 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
enforceability of the transactions authorized by the Oral Instructions
or PFPC Trust's ability to rely upon such Oral Instructions.
5. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUNDS. 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
Funds.
(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 from counsel of its own choosing (who may be
counsel for a Fund, a Fund's investment adviser or PFPC Trust, at the
option of PFPC Trust). The cost
4
of counsel pursuant to this provision shall be borne by PFPC unless
the counsel is sought from counsel for a Fund or the Fund's investment
adviser.
(c) CONFLICTING ADVICE. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC Trust
receives from the Funds, and the advice it receives from counsel, PFPC
Trust shall be entitled to rely upon and follow the advice of counsel
involving 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
Funds and/or counsel of the Funds' choosing and the conflict is not
resolved.
(d) PROTECTION OF PFPC TRUST. PFPC Trust shall be indemnified by the Funds
and without liability for any action PFPC Trust takes or does not take
in reliance upon directions or advice or Oral Instructions or Written
Instructions PFPC Trust receives from or on behalf of the Funds or
from counsel and which PFPC Trust 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 Instructions.
6. RECORDS; VISITS. The books and records pertaining to each Fund and any
Portfolio, which are in the possession or under the control of PFPC Trust,
shall be the property of such Fund. Such books and records shall be
prepared and maintained as required by the 1940 Act and other applicable
securities laws, rules and regulations. The Funds and Authorized Persons
shall have access to such books and records at all times during PFPC
5
Trust's normal business hours. Upon the reasonable request of a Fund,
copies of any such books and records shall be provided by PFPC Trust to
such Fund or to an authorized representative of such Fund, at such Fund's
expense.
7. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that is
competitively sensitive material, and not generally known to the public,
including, but not limited to, information about product plans, marketing
strategies, finances, operations, customer relationships, customer
profiles, customer lists, sales estimates, business plans, and internal
performance results relating to the past, present or future business
activities of the Funds 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 the Funds or PFPC
Trust a competitive advantage over its competitors; (c) all confidential or
proprietary concepts, documentation, reports, data, specifications,
computer software, source code, object code, flow charts, databases,
inventions, know-how, and trade secrets, whether or not patentable or
copyrightable; and (d) anything designated as confidential. Notwithstanding
the foregoing, information shall not be Confidential Information and 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
6
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 extent such notice is
permitted); (f) release of such information by PFPC Trust is necessary or
desirable 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.
8. COOPERATION WITH ACCOUNTANTS. PFPC Trust shall cooperate with the Funds'
independent public accountants and shall take all reasonable action to make
any requested information available to such accountants as reasonably
requested by the Funds.
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, 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.
Notwithstanding the foregoing, PFPC Trust shall have no right, title or
interest in any of the foregoing (including, without limitation, any
databases) or in any information owned or used by a Fund or any of a Fund's
Affiliates or furnished to PFPC Trust by a Fund or any of a Fund's
Affiliates and all such rights, property and information shall remain
vested in the Fund and/or the Fund's Affiliates. No rights or licenses to
any of the foregoing rights, property or information are implied or granted
under this Agreement.
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
7
use of electronic data processing equipment to the extent appropriate
equipment is available. In the event of equipment failures, PFPC Trust
shall, at no additional expense to the Funds, 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, gross negligence or reckless disregard
of its duties or obligations under this Agreement.
11. COMPENSATION. As compensation for custody services rendered by PFPC Trust
during the term of this Agreement, the Funds, on behalf of each of the
Portfolios, 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. The Funds
acknowledge that PFPC Trust may receive float benefits in connection with
maintaining certain accounts required to provide services under this
Agreement.
12. INDEMNIFICATION. The Funds, on behalf of each Portfolio, agree to
indemnify, defend 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, attorneys' fees and disbursements and
liabilities arising under the Securities Laws and any state and foreign
securities and blue sky laws) arising directly or indirectly from any
action or omission to act which PFPC Trust takes in connection with the
provision of services to the Funds. Neither PFPC Trust, nor any of its
affiliates, shall be indemnified against any liability (or any expenses
incident to such liability) caused by PFPC Trust's or its affiliates' own
willful misfeasance, bad faith, gross negligence or reckless disregard in
the performance of PFPC Trust's activities under this
8
Agreement. The provisions of this Section 12 shall survive termination of
this Agreement.
13. RESPONSIBILITY OF PFPC TRUST.
(a) PFPC Trust shall be under no duty to take any action hereunder on
behalf of the Funds or any Portfolio except as specifically set forth
herein or as may be specifically agreed to by PFPC Trust and the Funds
in a written amendment hereto. PFPC Trust shall be obligated to
exercise care and diligence in the performance of its duties hereunder
and to act in good faith in performing services provided for under
this Agreement. PFPC Trust shall be liable only for any damages
arising out of PFPC Trust's failure to perform its duties under this
Agreement and only to the extent such damages arise out of PFPC
Trust's willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties 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 utilities, transportation, computer or
communications capabilities; insurrection; elements of nature; or
non-performance by a third party caused by any of the foregoing;
provided that PFPC Trust has used reasonable efforts to minimize the
impact of any of the foregoing on its ability to fully perform its
obligations
9
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, neither
PFPC Trust nor its affiliates shall be liable for any consequential,
special or indirect losses or damages, whether or not the likelihood
of such losses or damages was known by PFPC Trust or its Affiliates.
(d) Each party shall have a duty 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), the Funds 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, the Funds shall be
responsible for the payment of all taxes and similar items (including
without limitation penalties and interest related thereto).
(g) The provisions of this Section 13 shall survive termination of this
Agreement.
(h) 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
10
servicer on behalf of the Funds or for any failure to discover any
such error or omission.
14. DESCRIPTION OF SERVICES.
(a) DELIVERY OF THE PROPERTY. The Funds will deliver or arrange for
delivery to PFPC Trust, all the Property owned by the Portfolios,
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
separate Portfolio of each Fund (each an "Account") and shall maintain
in the Account of a particular Portfolio all cash and other assets
received from or for each Fund specifically designated to such
Account.
PFPC Trust shall make cash payments from or for the Account of a
Portfolio only for:
(i) purchases of securities in the name of a Portfolio, 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 of the Funds 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 with held "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 Portfolio;
(iv) payment to, subject to receipt of Written Instructions, the
Funds' transfer agent, as agent for the members, of an amount
equal to the amount of dividends and distributions stated in
the Written Instructions to be distributed in cash by the
transfer agent to members, or, in lieu of paying the Funds'
transfer agent, PFPC Trust may arrange for the direct payment
11
of cash dividends and distributions to members in accordance
with procedures mutually agreed upon from time to time by and
among the Funds, PFPC Trust and the Funds' transfer agent;
(v) payments, upon receipt of Written Instructions, in connection
with the conversion, exchange or surrender of securities owned
or subscribed to by the Funds 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 made 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 shall hold all securities received by it for the
Accounts in a separate account that physically segregates such
securities from those of any other persons, firms or
corporations, except for securities held in a Book-Entry System
or through a sub-custodian or depository. All such securities
shall be held or disposed of only upon Written Instructions or
otherwise 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 a Fund's directors, or any officer, employee or agent
of a Fund 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 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
12
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 Portfolio against the receipt
of payment for the sale of such securities or otherwise in
accordance with standard market practice;
(ii) execute and deliver to such persons as may be designated in
such Oral Instructions or Written Instructions, proxies,
consents, authorizations, and any other instruments whereby the
authority of a Portfolio as owner of any securities may be
exercised;
(iii) deliver any securities to the issuer thereof, or its agent,
when such securities are called, redeemed, retired or otherwise
become payable at the option of the holder; provided that, in
any such case, the cash or other consideration is to be
delivered to PFPC Trust;
(iv) deliver any securities held for a Portfolio 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 a Portfolio 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;
13
(vi) make such transfer or exchanges of the assets of the Portfolios
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 Funds;
(vii) release securities belonging to a Portfolio to any bank or
trust company for the purpose of a pledge or hypothecation to
secure any loan incurred by the Funds on behalf of that
Portfolio; 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 Portfolio in
connection with any repurchase agreement entered into by the
Funds on behalf of that Portfolio, but only on receipt of
payment therefor; and pay out monies of the Funds in connection
with such repurchase agreements, but only upon the delivery of
the securities;
(ix) release and deliver or exchange securities owned by the Funds
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 Funds for the
purpose of redeeming in kind Units of the Funds upon delivery
thereof to PFPC Trust; and
(xii) release and deliver or exchange securities owned by the Funds
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
14
Portfolios 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
Portfolios, 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.
PFPC Trust shall administer a Book-Entry System or other depository as
follows:
(i) With respect to securities of each Portfolio 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 Portfolio.
(ii) Assets of each Portfolio deposited in a Book-Entry System or
another depository will (to the extent consistent with
applicable law and standard practice) at all times be
segregated from any assets and cash controlled by 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 the Funds with such reports on its own system
of internal control as the Funds may reasonably request from time to
time.
(f) REGISTRATION OF SECURITIES. All securities held for a Portfolio 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 Portfolio may be registered in the name of the Fund on behalf of
that Portfolio, PFPC Trust, a Book-Entry System, another
15
depository, a sub-custodian, or any duly appointed nominee of the
Fund, PFPC Trust, Book-Entry System, depository or sub-custodian. The
Funds reserve the right to instruct PFPC Trust as to the method of
registration and safekeeping of the securities of the Funds. The Funds
agree 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 Funds or a
Portfolio (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 upon receipt of Oral 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 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 Portfolio, except in accordance with Written
Instructions. PFPC Trust, directly or through
16
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 on behalf of a
Portfolio, 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 Portfolio, 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 Portfolio of such receipt and credit such
income to each Portfolio's custodian account;
(B) endorse and deposit for collection, in the name of the
Fund, checks, drafts, or other orders for the payment of
money;
(C) receive and hold for the account of each Portfolio all
securities received as a distribution on the Portfolio'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 Portfolio 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
17
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 Portfolio 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 a Fund on
behalf of a Portfolio 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 presentation and hold the cash received
by it upon such payment for the account of each
Portfolio;
(2) collect interest and cash dividends received, with
notice to a Fund, to the account of each Portfolio;
(3) hold for the account of each Portfolio 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 a 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 behalf of a Portfolio, on such certificate
as the owner of the securities covered thereby, to
the extent it
18
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 Portfolio. 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,
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.
(ii) PFPC Trust shall arrange for the establishment of XXX custodian
accounts for such members holding Units through XXX accounts,
in accordance with the Funds' 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 Funds,
PFPC Trust and the Funds' 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
19
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 Portfolio 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 Portfolio (or otherwise in accordance
with standard market practice) pay out of the monies held for
the account of the Portfolio 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;
(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 Portfolio involved.
PFPC Trust shall deliver the securities upon receipt of the total amount
payable to the Portfolio upon such sale, provided that the total amount
payable is the same as was set
20
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 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 Funds the following reports:
(A) such periodic and special reports as the Funds may
reasonably request;
(B) a monthly statement summarizing all transactions and
entries for the account of each Portfolio, listing each
portfolio security belonging to each Portfolio (with the
corresponding security identification number) held at the
end of such month and stating the cash balance of each
Portfolio at the end of such month.
(C) the reports required to be furnished to the Funds 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 Funds and PFPC Trust.
(ii) PFPC Trust shall transmit promptly to the Funds 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 the Funds 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 the Funds 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
21
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 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 Funds. The Funds hereby grant 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 of any
advance or credit made by PFPC Trust (including charges related
thereto) to such Account.
22
(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
Funds in writing, including copies of all demand letters, any written
responses and memoranda of all oral responses and shall await
instructions from the Funds. 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 Funds as soon as
reasonably practicable whenever income due on securities is not
collected in due course and shall provide the Funds with periodic
status reports of such income collected after a reasonable time.
(o) 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. This Agreement shall continue until terminated by
the Funds on sixty (60) days' notice prior written notice to the other
party or by PFPC Trust on one year's prior written notice to the other
party. In the event this Agreement is terminated (pending appointment of a
successor to PFPC Trust or vote of the members of the Funds 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
23
to a 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 twenty million dollars
($20,000,000), as a custodian for the Funds to be held under terms similar
to those of this Agreement. 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). 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.
16. NOTICES. Notices shall be addressed (a) if to PFPC Trust at 0000 Xxxxxxx
Xxxxxxxxx, 0xx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attention: Xxx Xxxxxxxx; (b) if to the Funds, at ______________,
Attention: ____________(or such other address as PFPC Trust may inform the
Funds in writing); or (c) if to neither of the foregoing, at such other
address as shall have been given by like notice to the sender of any such
notice or other communication by the other party. If notice is sent by
confirming electronic delivery, hand or facsimile sending device, it shall
be deemed to have been given immediately. If notice is sent by first-class
mail, it shall be deemed to have been given five days after it has been
mailed. If notice is sent by messenger, it shall be deemed to have been
given on the day it is delivered.
17. 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
24
waiver is sought.
18. DELEGATION; ASSIGNMENT. PFPC Trust may assign its rights and delegate its
duties hereunder to any affiliate of PFPC Trust or of The PNC Financial
Services Group, Inc., provided that PFPC Trust gives the Funds 45 days'
prior written notice of such assignment or delegation and such assignment
or delegation is approved in writing by the Funds, such consent not to be
unreasonably withheld or delayed.
19. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
20. 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 the Funds or any other person,
including, without limitation, any warranties regarding quality,
suitability, merchantability, fitness for a particular purpose or
otherwise (irrespective of any course of dealing, custom or usage of
trade), of any services or any goods provided incidental to services
provided under this Agreement. PFPC Trust disclaims any warranty of
title or non-infringement except as otherwise set forth in this
Agreement.
25
(c) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, the Funds agree not to
make any modifications to its registration statement or adopt any
policies which would affect materially the obligations or
responsibilities of PFPC Trust hereunder without the prior written
approval of PFPC Trust, which approval shall not be unreasonably
withheld or delayed.
(d) CAPTIONS. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(e) INFORMATION. The Funds will provide such information and documentation
as PFPC Trust may reasonably request in connection with services
provided by PFPC Trust to the Funds.
(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.
(f) PARTIAL INVALIDITY. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(h) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
26
(i) 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) the Fund's name, address and taxpayer
identification number or other government-issued identification
number, and, if such party is a natural person, that party's date of
birth. PFPC 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.
27
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
---------------------------------
By:
Title:
CSFB Alternative Capital, Inc.
---------------------------------
By:
Title:
CSFB Alternative Capital Multi-Strategy Master
Fund, LLC
---------------------------------
By:
Title:
CSFB Alternative Capital Event Driven Master
Fund, LLC
---------------------------------
By:
Title:
CSFB Alternative Capital Long/Short Equity
Master Fund, LLC
---------------------------------
By:
Title:
CSFB Alternative Capital Relative Value Master
Fund, LLC
---------------------------------
By:
Title:
28
CSFB Alternative Capital Tactical Trading Master
Fund, LLC
---------------------------------
By:
Title:
CSFB Alternative Capital Multi-Strategy Fund,
LLC
---------------------------------
By:
Title:
CSFB Alternative Capital Event Driven Fund, LLC
---------------------------------
By:
Title:
CSFB Alternative Capital Long/Short Equity Fund,
LLC
---------------------------------
By:
Title:
CSFB Alternative Capital Relative Value Fund,
LLC
---------------------------------
By:
Title:
CSFB Alternative Capital Tactical Trading Fund,
LLC
---------------------------------
By:
Title:
CSFB Alternative Capital Multi-Strategy
Institutional Fund, LLC
---------------------------------
29
By:
Title:
CSFB Alternative Capital Event Driven Institutional
Fund, LLC
---------------------------------
By:
Title:
CSFB Alternative Capital Long/Short Equity
Institutional Fund, LLC
---------------------------------
By:
Title:
CSFB Alternative Capital Relative Value
Institutional Fund, LLC
---------------------------------
By:
Title:
CSFB Alternative Capital Tactical Trading
Institutional Fund, LLC
---------------------------------
By:
Title:
CSFB Alternative Capital Multi-Strategy Offshore
Institutional Fund, LDC
---------------------------------
By:
Title:
CSFB Alternative Capital Event Driven Offshore
Institutional Fund, LDC
30
---------------------------------
By:
Title:
CSFB Alternative Capital Long/Short Equity
Offshore Institutional Fund, LDC
---------------------------------
By:
Title:
CSFB Alternative Capital Relative Value Offshore
Institutional Fund, LDC
---------------------------------
By:
Title:
CSFB Alternative Capital Tactical Trading Offshore
Institutional Fund, LDC.
---------------------------------
By:
Title:
[CSFB Alternative Capital Multi-Strategy Private
Fund, LP](1)
---------------------------------
By:
Title:
[CSFB Alternative Capital Long/Short Equity
Private Fund, LP]
---------------------------------
By:
Title:
[CSFB Alternative Capital Multi-Strategy Private
Fund Limited]
---------------------------------
By:
----------
(1) Names of bracketed funds need to be confirmed.
31
Title:
[CSFB Alternative Capital Long/Short Equity
Private Fund Limited]
---------------------------------
By:
Title:
32
SCHEDULE A
MASTER FUNDS
CSFB Alternative Capital Multi-Strategy Master Fund, LLC
CSFB Alternative Capital Event Driven Master Fund, LLC
CSFB Alternative Capital Long/Short Equity Master Fund, LLC
CSFB Alternative Capital Relative Value Master Fund, LLC
CSFB Alternative Capital Tactical Trading Master Fund, LLC
TAXABLE (NON-INSTITUTIONAL) FUNDS
CSFB Alternative Capital Multi-Strategy Fund, LLC
CSFB Alternative Capital Event Driven Fund, LLC
CSFB Alternative Capital Long/Short Equity Fund, LLC
CSFB Alternative Capital Relative Value Fund, LLC
CSFB Alternative Capital Tactical Trading Fund, LLC
TAX EXEMPT (INSTITUTIONAL) FUNDS
CSFB Alternative Capital Multi-Strategy Institutional Fund, LLC
CSFB Alternative Capital Event Driven Institutional Fund, LLC
CSFB Alternative Capital Long/Short Equity Institutional Fund, LLC
CSFB Alternative Capital Relative Value Institutional Fund, LLC
CSFB Alternative Capital Tactical Trading Institutional Fund, LLC
OFFSHORE (CAYMAN) UBTI BLOCKER FUNDS
CSFB Alternative Capital Multi-Strategy Offshore Institutional Fund, LDC
CSFB Alternative Capital Event Driven Offshore Institutional Fund, LDC
CSFB Alternative Capital Long/Short Equity Offshore Institutional Fund, LDC
CSFB Alternative Capital Relative Value Offshore Institutional Fund, LDC
CSFB Alternative Capital Tactical Trading Offshore Institutional Fund, LDC.
ONSHORE UNREGISTERED FEEDER FUNDS
[CSFB Alternative Capital Multi-Strategy Private Fund, LP](2)
[CSFB Alternative Capital Long/Short Equity Private Fund, LP]
OFFSHORE UNREGISTERED FEEDER FUNDS
----------
(2) Names of bracketed funds need to be confirmed.
33
[CSFB Alternative Capital Multi-Strategy Private Fund Limited]
[CSFB Alternative Capital Long/Short Equity Private Fund Limited]
34
