Exhibit (k)(i)
ADMINISTRATION, ACCOUNTING AND INVESTOR SERVICES AGREEMENT
THIS AGREEMENT is made as of April 1, 2005, by and among each of the
entities listed on Schedule A, attached hereto and made a part hereof as may be
amended from time to time (each a "Fund" and collectively, the "Funds"), CSFB
Alternative Capital Inc., a Delaware corporation and the adviser to the Funds
("CSFBAC"), and PFPC INC., a Massachusetts corporation ("PFPC").
W I T N E S S E T H :
WHEREAS, CSFBAC and each Fund wish to retain PFPC to provide certain
administration, accounting and investor services provided for herein, and PFPC
wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. As used in this Agreement:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(c) "1940 ACT" means the Investment Company Act of 1940, as amended.
(d) "AUTHORIZED PERSON" means any officer of a Fund and any other
person duly authorized by such Fund's directors to give Oral
Instructions and Written Instructions on behalf of such Fund. An
Authorized Person's scope of authority may be limited by setting
forth such limitation in a written document signed by the party
which is authorizing the authorized person and received by PFPC.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "GENERAL PARTNER" and "LIMITED PARTNER" shall have the same
meaning given such terms in a particular Fund's limited
partnership agreement, if that Fund is a limited partnership.
(g) "MANAGER" and "MEMBER" shall have the same meaning given such
terms in a particular Fund's LLC Agreement (as hereinafter
defined), if that Fund is a limited liability company.
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(h) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC from
an Authorized Person or from a person reasonably believed by PFPC
to be an Authorized Person. PFPC may consider and rely upon
instructions it receives from an Authorized Person via electronic
mail as Oral Instructions.
(i) "ORGANIZATIONAL DOCUMENTS" means in the case of each Fund, the
Fund's certificate of formation, certificate of limited
partnership, memorandum and articles of incorporation, Limited
Liability Company Agreement ("LLC Agreement"), bylaws, and other
documents constituting the Fund.
(j) "SEC" means the Securities and Exchange Commission.
(k) "SECURITIES LAWS" means the 1933 Act, the 1934 Act, the 1940 Act
and the CEA.
(l) "WRITTEN INSTRUCTIONS" means (i) written instructions signed by an
Authorized Person and received by PFPC or (ii) trade instructions
transmitted (and received by PFPC) by means of an electronic
transaction reporting system, access to which requires use of a
password or other authorized identifier. The instructions may be
delivered by hand, mail, or facsimile sending device.
2. APPOINTMENT. CSFBAC and each Fund hereby appoint PFPC to provide
administration, accounting and investor services in accordance with the
terms set forth in this Agreement. PFPC accepts such appointment and
agrees to furnish such services. Additional Funds may be added to this
Agreement from time to time through the execution of an instrument of
accession between such additional Fund and PFPC whereby such additional
Fund and PFPC will agree to be bound by the terms of this Agreement (as
it may be amended with respect to such Fund by such instrument of
accession). The addition of a Fund to this Agreement will not affect the
rights or obligations of any other Fund pursuant to the terms of this
Agreement. This Agreement also may be terminated
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with respect to a Fund without such termination affecting the rights or
obligations of any other Fund pursuant to the terms of this Agreement.
3. COMPLIANCE WITH RULES AND REGULATIONS.
With respect to each Fund, PFPC undertakes to comply with the applicable
requirements of the Securities Laws, and any laws, rules and regulations
of governmental authorities having jurisdiction with respect to the
duties to be performed by PFPC hereunder. Except as specifically set
forth herein or in a separate agreement signed by PFPC, PFPC assumes no
responsibility for such compliance by a Fund.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only
upon Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instructions or
Written Instructions it receives from an Authorized Person (or
from a person reasonably believed by PFPC to be an Authorized
Person) pursuant to this Agreement. PFPC may assume that any Oral
Instruction or Written Instruction received hereunder is not in
any way inconsistent with the provisions of the Organizational
Documents or this Agreement or of any vote, resolution or
proceeding of a Fund's Managers, General Partner, or Members,
unless and until PFPC receives Written Instructions to the
contrary or unless PFPC has actual knowledge to the contrary.
(c) CSFBAC and each Fund, as appropriate, agree to forward to PFPC
Written Instructions confirming Oral Instructions (except where
such Oral Instructions are given by PFPC or its affiliates) so
that PFPC receives the Written Instructions as promptly as
practicable and in any event by the close of business on the day
after such Oral Instructions are received. The fact that such
confirming Written Instructions are not received by PFPC or differ
from the
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Oral Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral
Instructions or PFPC's ability to rely upon such Oral
Instructions. Without prejudice to the foregoing, where PFPC is
aware of a material discrepancy between Oral Instructions and
confirming Written Instructions, PFPC shall promptly notify CSFBAC
or the Fund, as appropriate, of such discrepancy. Where Oral
Instructions or Written Instructions reasonably appear to have
been received from an Authorized Person, PFPC shall incur no
liability to CSFBAC or the Fund, as appropriate, in acting upon
such Oral Instructions or Written Instructions provided that
PFPC's actions comply with the other provisions of this Agreement.
5. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUNDS. If PFPC is in doubt as to any action it
should or should not take with respect to the duties to be
performed by PFPC hereunder, PFPC may request directions or
advice, including Oral Instructions or Written Instructions, from
a Fund or CSFBAC acting in its capacity as investment adviser to
the Fund.
(b) ADVICE OF COUNSEL. If PFPC shall be in doubt as to any question of
law pertaining to any action it should or should not take with
respect to the duties to be performed by PFPC hereunder, PFPC may
request advice of counsel of its own choosing (who may be counsel
for a Fund, a Fund's investment adviser, General Partner or
Manager or PFPC, at the option of PFPC). PFPC shall notify the
Fund or CSFBAC, as appropriate, if such advice is requested from
counsel for a Fund, a Fund's investment adviser, General Partner
or Manager, within a reasonable time after such request is made.
The cost of counsel pursuant to this provision shall be borne by
PFPC unless the advice is sought from counsel for a Fund or the
Fund's investment adviser, General Manager or Manager.
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(c) CONFLICTING ADVICE. In the event of a conflict between directions
or advice or Oral Instructions or Written Instructions PFPC
receives from CSFBAC or a Fund, and the advice PFPC receives from
counsel, PFPC may rely upon and follow the advice of counsel. With
respect to an issue of compliance with law or legal requirements,
PFPC shall be entitled to rely upon and follow the reasonable
advice of counsel, provided PFPC has discussed the matter with the
Fund and/or counsel of the Fund's choosing and the conflict is not
resolved within a reasonable time and in a reasonable manner.
(d) PROTECTION OF PFPC. Subject to the second sentence of Section 12
and except as otherwise specifically provided in a separate
agreement signed by the parties hereto, PFPC shall be indemnified
severally by each Fund (as applicable) and without liability for
any action PFPC takes or does not take in good faith and in
reliance upon directions or advice or Oral Instructions or Written
Instructions PFPC receives from or on behalf of CSFBAC or a Fund
or from counsel and which PFPC reasonably believes, in good faith,
to be consistent with those directions or advice or Oral
Instructions or Written Instructions. Nothing in this section
shall be construed so as to impose an obligation upon PFPC (i) to
seek such directions or advice or Oral Instructions or Written
Instructions, or (ii) to act in accordance with such directions or
advice or Oral Instructions or Written Instructions unless, under
the terms of other provisions of this Agreement, the same is a
condition of PFPC's properly taking or not taking such action.
6. RECORDS; VISITS.
(a) The books and records pertaining to a Fund, which are in the
possession or under the control of PFPC, shall be the property of
such Fund. If a Fund is an investment company registered under the
1940 Act, such books and records shall be prepared and maintained
as required by the 1940 Act and other applicable securities laws,
rules and regulations.
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CSFBAC, each Fund and Authorized Persons (and, with respect to a
Fund registered under the 1940 Act, the staff of the SEC or other
regulators) shall have access to such books and records at all
times during PFPC's normal business hours. Upon the reasonable
request of CSFBAC or a Fund, copies of any such books and records
shall be provided by PFPC to CSFBAC, such Fund or to an Authorized
Person, at the expense of CSFBAC, such Fund or Funds (as
applicable), provided that upon termination of this Agreement the
original records of the Funds still under the control of PFPC
shall be delivered to the successor fund administrator, if
applicable. Any such books and records may be maintained in the
form of electronic media and stored on any magnetic disk or tape
or similar recording method.
(b) PFPC shall keep the following records:
(i) all books and records with respect to a Fund's books of
account;
(ii) records of each Fund's securities transactions;
(iii) list of investors with respect to each Fund; and
(iv) investor documentation with respect to each Fund.
(c) PFPC shall provide to a Fund any Report on Controls Placed in
Operation and Tests of Operating Effectiveness which PFPC receives
from PFPC's independent accountants in accordance with U.S.
Statement of Auditing Standards No. 70 ("SAS 70 Report") within
thirty (30) days after PFPC receives the SAS 70 Report from its
independent accountants, provided that the Fund has requested such
SAS 70 Report.
7. CONFIDENTIALITY
(a) Each of (i) PFPC and (ii) CSFBAC and the Funds, shall keep
confidential any information relating to the business of the other
("Confidential Information"). Confidential Information shall
include (a) any data or information that is competitively
sensitive material, and not
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generally known to the public, including, but not limited to,
information about product plans, marketing strategies,
investments, investment strategies, finances, operations,
employees, personnel, customer relationships, customer profiles,
customer lists, sales estimates, business plans, and internal
performance results relating to the past, present or future
business activities of CSFBAC, a Fund or PFPC and their respective
affiliates and subsidiaries and the customers, clients and
suppliers of any of them; (b) any scientific or technical
information, design, process, procedure, formula, or improvement
that is commercially valuable and secret in the sense that its
confidentiality affords any Fund, CSFBAC or PFPC or their
respective affiliates a competitive advantage over their
competitors; (c) all confidential or proprietary concepts,
documentation, reports, data, specifications, computer software,
source code, object code, flow charts, databases, inventions,
know-how, and trade secrets, whether or not patentable or
copyrightable; and (d) anything designated as confidential.
Notwithstanding the foregoing, information shall not be subject to
such confidentiality obligations if: (a) it is already known to
the receiving party at the time it is obtained; (b) it is or
becomes publicly known or available through no wrongful act of the
receiving party; (c) it is rightfully received from a third party
who, to the best of the receiving party's knowledge, is not under
a duty of confidentiality; (d) it is released by the protected
party to a third party without restriction; (e) it is requested or
required to be disclosed by the receiving party pursuant to a
court order, subpoena, governmental or regulatory agency request
or law (provided the receiving party will provide the other party
prompt written notice of the same, to the extent such notice is
permitted); (f) it is relevant to the defense of any claim or
cause of action asserted against the receiving party; (g) release
of such information is necessary in connection with PFPC's
provision of
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services under this Agreement; or (h) it has been or is
independently developed or obtained by the receiving party.
(b) If any party to this Agreement (or any company affiliated with a
party to this Agreement) is requested or required (by oral
question, interrogatories, requests for information or documents,
subpoena, civil investigative demand, or similar process) to
disclose any Confidential Information, such party (the "Disclosing
Party"), will promptly notify the other parties (to the extent
permitted by law) of such request or requirement so that such
other party or parties may seek an appropriate protective order.
If, in the absence of a protective order or the receipt of a
waiver hereunder, the Disclosing Party is, in the opinion of
counsel to the Disclosing Party, compelled to disclose the
Confidential Information the Disclosing Party may disclose only
such portion of the Confidential Information to the party
compelling disclosure as is required by law, as determined solely
by counsel to the Disclosing Party.
(c) Each party hereto acknowledges and agrees that, subject to the
reuse and re-disclosure provisions of Xxxxxxxxxx X-X, 00 XXX Part
248.11, it shall not disclose the non-public personal information
of investors in the Funds obtained under this Agreement, except as
necessary to carry out the services set forth in this Agreement or
as otherwise permitted by law or regulation.
8. LIAISON WITH ACCOUNTANTS
PFPC shall act as liaison with each Fund's independent public accountants
and shall provide account analyses, fiscal year summaries, and other
audit-related schedules with respect to such Fund. PFPC shall take all
reasonable action in the performance of its duties under this Agreement
with respect to a particular Fund to assure that the necessary
information is made available in a
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timely fashion to such accountants for the expression of their opinion
with respect to that Fund, as required by the Fund or CSFBAC.
9. PFPC SYSTEM.
PFPC shall retain title to and ownership of any and all databases,
computer programs, screen formats, report formats, interactive design
techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by PFPC in connection
with the services provided by PFPC to a Fund under this Agreement.
Nothing in this Agreement will grant to PFPC title to or ownership of any
data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions, discoveries,
patentable or copyrightable matters, concepts, expertise, patents,
copyrights, trade secrets, or other related legal rights belonging to the
CSFBAC, the Funds, or their affiliates.
10. DISASTER RECOVERY.
PFPC shall enter into and shall maintain in effect with appropriate
parties one or more agreements making reasonable provisions for emergency
use of electronic data processing equipment. PFPC will, on request,
provide a Fund with a summary of PFPC's disaster recovery procedures. In
the event of equipment failures, PFPC shall, at no additional expense to
any Fund, take reasonable steps to minimize service interruptions. PFPC
shall have no liability with respect to the loss of data or service
interruptions caused by equipment failure, provided such loss or
interruption is not caused by PFPC's own willful misfeasance or willful
misconduct, bad faith, gross negligence or reckless disregard of its
duties or obligations under this Agreement.
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11. COMPENSATION.
(a) As compensation for services set forth herein that are rendered by
PFPC during the term of this Agreement, the Funds will pay to PFPC
a fee or fees as may be agreed to in writing by the Funds and
PFPC.
(b) Each Fund hereby represents and warrants to PFPC that (i) the
terms of this Agreement, (ii) the fees and expenses associated
with this Agreement, and (iii) any benefits accruing to PFPC or to
the adviser or sponsor to the Funds in connection with this
Agreement, including but not limited to any fee waivers,
conversion cost reimbursements, up front payments, signing
payments or periodic payments made or to be made by PFPC to such
adviser or sponsor or any affiliate of the Funds relating to this
Agreement have been fully disclosed to the General Partner or
Manager of the Fund, as the case may be, and that, if required by
applicable law, such General Partner or Manager has approved or
will approve the terms of this Agreement, any such fees and
expenses, and any such benefits.
12. INDEMNIFICATION.
(a) CSFBAC and each Fund agrees severally and not jointly to indemnify
and hold harmless PFPC and its affiliates, including their
respective officers, directors, agents and employees, from all
taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, reasonable attorneys' fees and
disbursements and liabilities arising under the Securities Laws
and any state and foreign securities laws) (collectively,
"Losses"), arising directly or indirectly from any action or
omission to act which PFPC takes in connection with the provision
of services hereunder to the extent provided herein.
Notwithstanding anything to the contrary contained herein, neither
PFPC, nor any of its affiliates, shall be indemnified from against
from any Losses and against any liability (or any expenses
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incident to such liability) caused by PFPC's or its affiliates'
own willful misfeasance or willful misconduct, bad faith, gross
negligence or reckless disregard in the performance of PFPC's
activities under this Agreement. Any amounts payable by a Fund
hereunder shall be satisfied only against such Fund's assets and
not against the assets of any other Fund. The provisions of this
Section 12 shall survive termination of this Agreement.
(b) PFPC agrees to indemnify, defend and hold harmless CSFBAC and each
Fund from Losses arising directly or indirectly from any act or
omission to act of PFPC pursuant to this Agreement but only if
such liability arises from PFPC's or its affiliates' own willful
misfeasance or willful misconduct, bad faith, gross negligence or
reckless disregard of its duties and obligations under this
Agreement.
13. RESPONSIBILITY OF PFPC
(a) PFPC shall be under no duty to take any action on behalf of CSFBAC
or a Fund except as specifically set forth herein or as may be
specifically agreed to by PFPC, CSFBAC and a Fund in writing and
signed by PFPC. PFPC shall be obligated to exercise care and
diligence in the performance of its duties hereunder, including
duties set forth in any schedules to this Agreement and to act in
good faith in performing services provided for under this
Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, (i)
PFPC shall not be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or indirectly by
reason of circumstances beyond its reasonable control, including
without limitation acts of God; action or inaction of civil or
military authority; public enemy; war; terrorism; riot; fire;
flood; sabotage; epidemics; labor disputes; civil commotion;
interruption, loss or malfunction of public utilities, public
transportation, computer or communications capabilities;
insurrection; elements of nature; or non-performance by a third
party caused
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by any of the foregoing; provided that PFPC has used reasonable
efforts to minimize the impact of any of the foregoing on its
ability to fully perform its obligations hereunder; and (ii) PFPC
shall not be under any duty or obligation to inquire into and
shall not be liable for the validity or invalidity, authority or
lack thereof, or truthfulness or accuracy or lack thereof, of any
instruction, direction, notice, instrument or other information
which PFPC reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement (whether contained
anywhere in Sections 14-16 or otherwise) to the contrary, CSFBAC
and each Fund hereby acknowledge and agree that (i) PFPC, in the
course of calculating and reporting portfolio performance
hereunder, may rely upon PFPC's good faith interpretation of tax
positions or its good faith interpretation of relevant
circumstances (as reasonably determined by PFPC) in providing such
tax services and in determining methods of calculating portfolio
performance to be used, and that (ii) PFPC shall not be liable for
losses or damages of any kind associated with such reliance except
to the extent such loss or damage is due to PFPC's gross
negligence, reckless disregard of its duties, willful misfeasance
or willful misconduct.
(d) Notwithstanding anything in this Agreement to the contrary,
without limiting anything in the immediately preceding sentence,
the Funds hereby acknowledge and agree that PFPC shall not be
liable for any losses or damages of any kind associated with any
tax filings with which PFPC has assisted in any way except to the
extent such loss or damage is due to PFPC's gross negligence or
willful misconduct; provided, however, that PFPC shall not be
found to have been grossly negligent for losses or damages
associated with areas of responsibility that the judiciary,
regulators (or other governmental officials) or members of the
hedge fund industry determine would otherwise apply to PFPC (or
similar service providers) and which, as of the date hereof, have
yet to be identified by
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such parties as areas for which PFPC (or any similar service
provider) is (or would be) responsible.
(e) Notwithstanding anything in this Agreement to the contrary, no
party to this Agreeemnt nor their affiliates shall be liable for
any consequential, special or indirect losses or damages, whether
or not the likelihood of such losses or damages was known by them
or their affiliates.
(f) Each party shall have a duty to use commercially reasonable
efforts to mitigate damages for which the other party may become
responsible.
(g) The provisions of this Section 13 shall survive termination of
this Agreement.
(h) Notwithstanding anything in this Agreement to the contrary, PFPC
shall have no liability either for any error or omission of any of
its predecessors as servicer on behalf of any Fund or for any
failure to discover any such error or omission.
14. SERVICES. PFPC shall, with respect to each separate Fund, but only as
applicable to a particular Fund, perform the services set forth on
Schedule B to this Agreement.
15. DURATION AND TERMINATION.
(a) The term of this Agreement is for an initial term beginning from
the date of this Agreement and continuing through the close of
business two (2) years thereafter (the "Initial Term"). Upon the
expiration of the Initial Term, this Agreement will automatically
renew for successive terms of one (1) year ("Renewal Terms"). Any
Fund or PFPC may terminate this Agreement effective at the end of
the Initial Term or any Renewal Term by providing written notice
to the other parties of its intent not to renew. Notice of
termination must be received not less than one hundred and eighty
(180) days prior to the expiration of the Initial Term or the then
current Renewal Term. In the event a Fund gives notice of
termination, all reasonable expenses associated with
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movement (or duplication) of records and materials and conversion
thereof to a successor service provider (or each successor service
provider, if there are more than one), and all trailing expenses
incurred by PFPC, will be borne by the Fund. If this Agreement is
terminated with respect to a particular Fund, this Agreement shall
remain in full force and effect with respect to CSFBAC and the
remaining Funds.
(b) If a party hereto fails in any material respect to perform its
duties and obligations hereunder (a "Defaulting Party"), or if a
representation and warranty of a party hereof becomes untrue or
inaccurate in any material respect, the other party (the
"Non-Defaulting Party") may give written notice thereof to the
Defaulting Party, and if such material breach shall not have been
remedied within sixty (60) days after such written notice is
given, then the Non-Defaulting Party may terminate this Agreement
with respect to the Defaulting Party by giving ninety (90) days'
written notice of such termination to the Defaulting Party.
Termination of this Agreement by the Non-Defaulting Party shall
not constitute a waiver of any other rights or remedies with
respect to obligations of the parties prior to such termination or
rights of PFPC to be reimbursed for all of its out-of-pocket
expenses and its normal monthly fees or other obligations due it.
In all cases, termination by the Non-Defaulting Party shall not
constitute a waiver by the Non-Defaulting Party of any other
rights it might have under this Agreement or otherwise against the
Defaulting Party.
(c) Upon occurrence of any of the following events, the party not
subject to such event ("Non-Offending Party") shall have the right
to immediately terminate this Agreement upon written notice to the
other party: (i) either party ceases doing (or gives notice of
ceasing to do) business and its business is not continued by
another corporation or entity who has agreed to assume its
obligations, (ii) either party becomes insolvent or files for
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or becomes a party to any involuntary bankruptcy, receivership or
similar proceeding, and such involuntary proceeding is not
dismissed within forty-five (45) calendar days after filing, or
(iii) either party makes an assignment for the benefit of
creditors. Nothing herein shall grant CSFBAC and a particular
Fund(s) the right to terminate this Agreement with respect to PFPC
if PFPC is a Non-Offending Party.
16. NOTICES.
All notices and other communication, including Written Instructions but
excluding Oral Instructions shall be addressed (a) if to PFPC, at 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or
such other address as PFPC may inform the Funds in writing); (b) if to
the Funds, at Eleven Madison Avenue, New York, New York 10010, Attention:
HFI Middle Office; (c) if to CSFBAC, at Eleven Madison Avenue, New York,
New York 10010, Attention: HFI Middle Office; or (d) if to none of the
foregoing, at such other address as shall have been given by like notice
to the sender of any such notice or other communication by the other
party. If notice is sent by confirming 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 three days after
it has been mailed. If notice is sent by messenger, it shall be deemed to
have been given on the day it is delivered.
17. AMENDMENTS.
This Agreement, or any term thereof, may be changed or waived only by
written amendment, signed by the party against whom enforcement of such
change or waiver is sought.
18. ASSIGNMENT; DELEGATION.
PFPC may assign its rights and delegate its duties hereunder with respect
to a Fund to any majority-owned direct or indirect subsidiary of PFPC or
of The PNC Financial Services Group, Inc., provided that PFPC gives such
Fund and CSFBAC ninety (90) days prior written notice of
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such assignment or delegation and such assignment or delegation is
approved by CSFBAC and each such Fund, such consent not to be
unreasonably withheld, conditioned or delayed. CSFBAC may assign this
Agreement if such assignment is approved by PFPC, such consent not to be
unreasonably withheld, conditioned or delayed.
19. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute
one and the same instrument.
20. FURTHER ACTIONS.
Each party agrees to perform such further acts and execute such further
documents as are necessary to effectuate the purposes hereof.
21. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. As between each separate Fund and PFPC, this
Agreement (including the schedules attached hereto) embodies the
entire agreement and understanding between the parties and
supersedes all prior agreements and understandings relating to the
subject matter hereof, provided that the parties may embody in one
or more separate documents their agreement, if any, with respect
to delegated duties or other matters as contemplated herein.
(b) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, each Fund agrees to
provide PFPC with prior notice to evaluate the impact of any
modifications to its Organizational Documents or the adoption of
any policies (a "Material Modification") which would materially
affect the obligations or responsibilities of PFPC hereunder. In
the event of a Material Modification PFPC shall have the option of
either (i) charging the particular Fund(s) for any new or
additional services at its customary rates or (ii) terminating
this Agreement with respect
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to that Fund(s) upon ninety (90) days written notice.
(c) CAPTIONS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any
of the provisions hereof or otherwise affect their construction or
effect.
(d) INFORMATION. Each Fund will provide such information and
documentation as PFPC may reasonably request in connection with
services provided by PFPC to the Fund.
(e) GOVERNING LAW. This Agreement shall be deemed to be a contract
made in Delaware and governed by Delaware law without regard to
principles of conflict 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) NO REPRESENTATIONS OR WARRANTIES. Except as expressly provided in
this Agreement, PFPC hereby disclaims all representations and
warranties, express or implied, made to CSFBAC, a Fund or any
other person, regarding quality, suitability, merchantability,
fitness for a particular purpose or otherwise (irrespective of any
course of dealing, custom or usage of trade), of any services or
any goods provided incidental to services provided under this
Agreement. PFPC disclaims any warranty of title or
non-infringement except as otherwise set forth in this Agreement.
(i) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof
by such party.
(j) CUSTOMER IDENTIFICATION PROGRAM NOTICE. To help the U.S.
government fight the funding of terrorism and money laundering
activities, U.S. Federal law requires each financial
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institution to obtain, verify, and record certain information that
identifies each person who initially opens an account with that
financial institution on or after October 1, 2003. Certain of
PFPC's affiliates are financial institutions, and PFPC may, as a
matter of policy, request (or may have already requested) CSFBAC's
and each Fund's name, address and taxpayer identification number
or other government-issued identification number, and, if such
party is a natural person, that party's date of birth. PFPC may
also ask (and may have already asked) for additional identifying
information, and PFPC may take steps (and may have already taken
steps) to verify the authenticity and accuracy of these data
elements.
(k) PFPC represents and warrants that it has adopted policies and
procedures reasonably designed to detect and prevent money
laundering activities in compliance with applicable laws,
regulations and regulatory interpretations. In this regard, PFPC
represents that it shall (i) upon reasonable request, provide a
copy of its anti-money laundering program (or a summary thereof)
to CSFBAC and, if appropriate, the Funds, and (ii) upon request,
provide to the Funds, a copy of the attestation letter received by
PFPC from an independent auditor in connection with the annual
audit performed with respect to PFPC's Anti-Money Laundering
program.
(l) PFPC is entering into this Agreement with CSFBAC and each of the
Funds separately and not jointly, and any duty, obligation or
liability owed or incurred by PFPC with respect to CSFBAC and a
particular Fund shall be owed or incurred solely with respect to
CSFBAC and that Fund, and shall not in any way create any duty,
obligation or liability with respect to any other Fund. This
Agreement shall be interpreted to carry out the intent of the
parties hereto that PFPC is entering into a separate arrangement
with each separate Fund.
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
/s/ Xxxxxx Xxxxx
---------------------------
By: Xxxxxx Xxxxx
Title: Vice President
CSFB Alternative Capital, Inc.
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title: Managing Director
CSFB Alternative Capital Multi-Strategy Master Fund, LLC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Event Driven Master Fund, LLC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Long/Short Equity Master Fund,
LLC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Relative Value Master Fund, LLC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Tactical Trading Master Fund,
LLC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
19
CSFB Alternative Capital Multi-Strategy Fund, LLC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Event Driven Fund, LLC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Long/Short Equity Fund, LLC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Relative Value Fund, LLC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Tactical Trading Fund, LLC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Multi-Strategy Institutional Fund,
LLC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Event Driven Institutional Fund,
LLC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
20
CSFB Alternative Capital Long/Short Equity Institutional
Fund, LLC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Relative Value Institutional Fund,
LLC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Tactical Trading Institutional
Fund, LLC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title: President and Manager
CSFB Alternative Capital Multi-Strategy Offshore
Institutional Fund, LDC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title:
CSFB Alternative Capital Event Driven Offshore
Institutional Fund, LDC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title:
CSFB Alternative Capital Long/Short Equity Offshore
Institutional Fund, LDC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title:
CSFB Alternative Capital Relative Value Offshore
Institutional Fund, LDC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title:
21
CSFB Alternative Capital Tactical Trading Offshore
Institutional Fund, LDC
/s/ Xxxxx X. Xxx
---------------------------
By: Xxxxx X. Xxx
Title:
Multi-Strategy Private Fund, LP
---------------------------
By:
Title:
Long/Short Equity Private Fund, LP
---------------------------
By:
Title:
Multi-Strategy Private (Offshore) Fund Limited
---------------------------
By:
Title:
Global Diversified Investors I Limited
---------------------------
By:
Title:
Global Diversified Investors II Limited
----------------------------
By:
Title:
Healthtech Long/Short Investors Limited
----------------------------
By:
Title:
22
DLJ Technology Long/Short Investors Limited
-----------------------------
By:
Title:
23
SCHEDULE A
MASTER FUNDS
CSFB Alternative Capital Multi-Strategy Master Fund, LLC
CSFB Alternative Capital Event Driven Master Fund, LLC
CSFB Alternative Capital Long/Short Equity Master Fund, LLC
CSFB Alternative Capital Relative Value Master Fund, LLC
CSFB Alternative Capital Tactical Trading Master Fund, LLC
TAXABLE (NON-INSTITUTIONAL) FUNDS
CSFB Alternative Capital Multi-Strategy Fund, LLC
CSFB Alternative Capital Event Driven Fund, LLC
CSFB Alternative Capital Long/Short Equity Fund, LLC
CSFB Alternative Capital Relative Value Fund, LLC
CSFB Alternative Capital Tactical Trading Fund, LLC
TAX EXEMPT (INSTITUTIONAL) FUNDS
CSFB Alternative Capital Multi-Strategy Institutional Fund, LLC
CSFB Alternative Capital Event Driven Institutional Fund, LLC
CSFB Alternative Capital Long/Short Equity Institutional Fund, LLC
CSFB Alternative Capital Relative Value Institutional Fund, LLC
CSFB Alternative Capital Tactical Trading Institutional Fund, LLC
OFFSHORE (CAYMAN) UBTI BLOCKER FUNDS
CSFB Alternative Capital Multi-Strategy Offshore Institutional Fund, LDC
CSFB Alternative Capital Event Driven Offshore Institutional Fund, LDC
CSFB Alternative Capital Long/Short Equity Offshore Institutional Fund, LDC
CSFB Alternative Capital Relative Value Offshore Institutional Fund, LDC
CSFB Alternative Capital Tactical Trading Offshore Institutional Fund, LDC
ONSHORE UNREGISTERED FEEDER FUNDS
Multi-Strategy Private Fund, LP
Long/Short Equity Private Fund, LP
OFFSHORE UNREGISTERED FEEDER FUNDS
Multi-Strategy Private (Offshore) Fund Limited
Global Diversified Investors I Limited
Global Diversified Investors II Limited
Healthtech Long/Short Investors Limited
DLJ Technology Long/Short Investors Limited
24
SCHEDULE B
ACCOUNTING SERVICES
a. Journalize investment, capital and income and expense activities;
b. Record and verify investment buy/sell trade tickets when received
from the CSFBAC;
c. Maintain individual ledgers for investment securities;
d. Maintain historical tax lots for each security;
e. Record and reconcile corporate action activity and all other
capital changes;
f. Reconcile cash and investment balances of each Fund with the
Fund's custodian(s), and provide CSFBAC with the beginning cash
balance available for investment purposes on a T+1 basis;
g. Calculate contractual expenses, including management fees, as
applicable, in accordance with the Fund's Organizational
Documents;
h. Post to and prepare, by such date and time as mutually agreed upon
by the parties, the Fund's statement of assets and liabilities and
statement of operations in U.S. dollar terms or such other
currencies to the extent that a Fund is denominated in another
currency;
i. Monitor the expense accruals and notify CSFBAC and an officer of
the Fund of any proposed adjustments;
j. Monitor cash available for redemptions and notify CSFBAC and an
officer of the Fund of any shortfalls;
k. Control all disbursements and authorize such disbursements, in
each case, upon Written Instructions;
l. Calculate capital gains and losses;
m. Determine net income;
n. Determine applicable foreign exchange gains and losses on payables
and receivables;
o. Obtain valuations from underlying hedge funds or their
administrators, and calculate the value of the Fund's investments
in accordance with the applicable pricing and fair valuation
procedures of the Funds, provided that PFPC does not inform the
Fund that it is either unable or unwilling to comply with such
policies or procedures;
p. Transmit or mail a copy of the portfolio valuation as agreed upon
by each CSFBAC and PFPC;
25
q. Provide an estimated rate of return and Fund level net asset value
for each Fund no later than the 15th business days after the end
of the month;
r. Compute quarterly actual rate of return and Fund level net asset
value upon receipt of the final values provided by the Fund's
underlying hedge funds in accordance with procedures as agreed
upon in writing by CSFBAC and PFPC;
s. As appropriate, compute yields, total return, expense ratios, and
portfolio turnover rates;
t. Allocate income expenses, gains and losses, to the capital
accounts of each General Partner, Limited Partner and Member (as
appropriate with respect to a particular Fund) in accordance with
each Fund's Organizational Documents; and
u. Provide standard reports for management fees charged at the
investor level.
TAX SERVICES
a. Provide each Fund's auditor with relevant book allocation and
audited information as directed by CSFBAC.
ADMINISTRATION SERVICES.
a. Prepare monthly security transaction listings;
b. Supply various normal and customary Fund statistical data as
requested on an ongoing basis;
c. Coordinate contractual relationships and communications between
each Fund and their contractual service providers;
d. Prepare and file Annual and Semi-Annual Reports of each Fund with
the SEC on Form N-SAR (as applicable) via XXXXX, until CSFBAC or a
Fund notifies PFPC that it shall no longer require such services;
e. Prepare and coordinate printing of each Fund's annual and
semi-annual shareholder reports (not including Form N-CSR), until
CSFBAC or a Fund notifies PFPC that it shall no longer require
such services;
f. Assist Fund's counsel and Fund management with the preparation of
schedule TO's and any applicable related filings with the SEC and
coordinate the filings with the Fund's financial printer, until
CSFBAC or a Fund notifies PFPC that it shall no longer require
such services;
g. Prepare and coordinate with the Fund's counsel and Fund management
annual post-effective amendments to the Fund's registration
statement on Form N-2, if needed, and coordinate the filing with
the Fund's financial printer, until CSFBAC or a Fund notifies
PFPC that it shall no longer require such services;
26
h. Monitor each Fund's assets on a monthly basis to assure adequate
fidelity bond coverage is maintained and report results to CSFBAC
as appropriate;
i. Draft agendas and resolutions for quarterly board meetings and
draft written consents of the board;
j. Coordinate the preparation, assembly and mailing of materials for
quarterly board meetings;
k. Attend quarterly board meetings and draft minutes thereof;
l. Maintain a calendar to assure compliance with various SEC filing
and Board approval deadlines;
m. Assist the Funds in the handling of SEC examinations and responses
thereto;
n. At the direction of CSFBAC complete subscription documents,
investor questionnaires and similar materials with respect to the
Fund's investments in underlying hedge funds and redemptions
therefrom (the "Sub-Docs"), and execute the Sub-Docs as
attorney-in-fact pursuant to that certain limited power of
attorney granted by each of the Funds, a form of which is attached
hereto as Schedule C. PFPC will contact underlying hedge funds or
their administrators to confirm the most recent Sub-Doc
information and will review such information. For clarification,
as between PFPC and each Fund, each Fund shall be solely
responsible for (i) customer suitability review and "know your
customer" information requirements, in accordance with all
applicable laws, rules and regulations; and (ii) any anti-money
laundering, due diligence or other actions required to be taken
with respect to customers, which, if applicable shall include
without limitation, the USA PATRIOT Act (Pub. Law No. 107-56,
October 26, 2001) and any similar laws enacted after the date
hereof;
o. Fax Sub-Docs and other applicable documentation to underlying
hedge funds and confirm their receipt;
p. Send original Sub-Docs and other applicable documents to the
underlying hedge funds via Federal Express or other overnight
courier and confirm acceptance into the underlying hedge funds and
receipt of cash;
q. Prepare wire instructions and then forward instructions to the
custodian for the underlying hedge funds or other appropriate
party;
r. Provide CSFBAC with an underlying hedge fund tracking report daily
during the first two weeks of each month;
s. Monitor redemption activity and update CSFBAC when cash is
expected to be received during the holdback period and upon
expected final payout date;
t. Maintain files and assist with sending audit confirmations to
underlying hedge funds at
27
year-end;
u. Subject to the confidentiality restrictions of this Agreement,
provide underlying hedge funds with additional information
required on behalf of the underlying hedge fund mangers;
v. Perform such additional administrative services relating to the
administration of the Funds as may subsequently be agreed upon in
writing between CSFBAC, the Fund's and PFPC at such fees as the
parties agree.
INVESTOR SERVICES.
a. Furnish net asset value of each Fund to investors in the Fund's,
their advisors and other interested parties, as applicable;
b. Confirm investment and/or subscription by investors;
c. Maintain the register of Limited Partners or Members, as
applicable, and enter on such register all issues, transfers and
repurchases of interests in the Fund;
d. Coordinate with CSFBAC to distribute quarterly Fund tender offer
letters, calculate redemption amounts, confirm bank account and
wire information, make distributions and confirm distributions
with investors;
e. Arrange for the calculation of the issue and repurchase prices of
interests in the Fund in accordance with each Fund's
Organizational Documents;
f. Mail completed K-1s to investors in the Funds and other interested
parties;
g. Mail monthly statements and/or shareholder letters to investors in
the Funds, brokers and other interested parties as directed by
CSFBAC;
h. Provide printing, copying, and mail merge services as may be
required by the Funds;
i. Provide quarter-end balances and consolidated statements as
directed by CSFBAC;
j. Furnish such information from time to time as may be required by
each Fund;
k. Host and update an investor website as directed by CSFBAC and make
reasonable efforts to ensure that information about the investors
in the Funds and the Funds is kept confidential; and
l. Mail to investors a quarterly capital statement.
28
SCHEDULE C
FORM POWER OF ATTORNEY
[FUND NAME], ("Fund"), DOES HEREBY CONSTITUTE AND APPOINT PFPC INC., a
Massachusetts corporation ("PFPC"), together with its affiliates, including any
direct or indirect subsidiary and its officers and employees, as its true and
lawful agents and attorneys-in-fact (the "Attorney(s)-in-fact"), in their name,
place and xxxxx to act as the Fund's agent for the following purposes:
1. Receiving, completing, and forwarding to the appropriate party, any
subscription documents (or the equivalent), investor questionnaires and
similar materials for investments in which the Fund desires to invest or
redemptions therefrom;
2. Signing any applications necessary (or, in the Attorney(s)-in-fact's
opinion, desirable) to achieve any of the matters or things referred to
above, and any forms, correspondence and other documents ancillary
thereto; and
3. Any other action which the Attorney(s)-in-fact deem is necessary or
desirable in connection with any of the above.
PFPC shall have full power and authority to make and constitute in its place and
stead one or more persons to act as substitute attorney(s)-in-fact for all or
any of the purposes referred to herein, and may revoke any such appointment at
any time, provided that the Attorney(s)-in-fact shall be responsible for the
acts or omissions of any substitute as PFPC is for itself under the
Administration, Accounting and Investor Services Agreement by and between PFPC
and the Fund.
The Fund hereby undertakes to ratify and confirm anything the
Attorney(s)-in-fact may do pursuant to this Power of Attorney and the Fund
confirms that PFPC is entitled to sign documents on the Fund's behalf which
shall be treated for all purposes as if they have been signed in the Fund's own
name.
The Fund confirms that the Attorney(s)-in-fact may rely on any information
supplied to it/them by the Fund (or other persons on the Fund's behalf) in
relation to the performance of its/their duties and powers hereunder. The Fund
warrants that the information supplied to the Attorney(s)-in-fact is complete,
accurate and not misleading in any respect and undertake to inform the
Attorney(s)-in-fact immediately of any changes that would render the information
supplied inaccurate, incomplete or misleading.
The Fund confirms that the Attorney(s)-in-fact and, its/their officers,
directors, agents and employees, shall be indemnified and held harmless for any
actions or omissions to act in any way relating to or arising out of this Power
of Attorney pursuant to Section 12 of the Administration, Accounting and
Investor Services Agreement between the Fund, CSFB Alternative Capital Inc., and
PFPC dated ______, 2005.
The Fund declares that this Power of Attorney shall be irrevocable for the
period that PFPC is the administrator of the Fund. The Fund further declares
that neither the Attorney(s)-in-fact nor any third party shall be liable for
acting in a way as if this Power of Attorney were still valid, unless the Fund
has delivered express notice of its termination to the Attorney(s)-in-fact.
29
The Fund confirms that this Power of Attorney may be shown to any governmental
authority with jurisdiction over the Fund, the Attorney(s)-in-fact, or other
relevant persons. The Fund also confirms that it shall not, nor shall any other
person on its behalf, initiate, conduct, negotiate or arrange any of the matters
or things which the Attorney(s)-in-fact are hereby empowered to do or perform
(or attempt to do the same) without the prior written consent of the
Attorney(s)-in-fact (which shall not be unreasonably withheld or delayed).
The Fund warrants that this Power of Attorney is valid and binding upon it and
its successors and assigns for all purposes and that it has the power and
authority to enter into, and the Fund has taken all necessary [corporate]
action(s) to authorize the execution and delivery of, this Power of Attorney.
This Power of Attorney shall be governed by and construed in accordance with the
laws of the State of Delaware.
IN WITNESS WHEREOF the Fund has caused this Power of Attorney to be duly
executed this ___ day of _________, 200__.
[FUND NAME]
---------------------------
By:
Title:
Notary:
STATE OF ___________________ )
)ss
County / Country of ____________________ )
On this ________ day of __________________, 200__, before me__________________,
a Notary Public in and for said County and State, residing therein duly
commissioned and sworn, personally appeared ____________________ personally
known to me to be the ______________ of the [corporation] described, executed
the within instrument on behalf of the [corporation] therein named, and
acknowledged that such [corporation] executed the same, pursuant to its bylaws
or a resolution of its [board of directors].
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal,
the day and year in this Certificate first above written
-------------------------------------
Notary Public in and for such County and State or Country
30
