CUSTODIAN SERVICES AGREEMENT
Exhibit 99.(2)(j)
THIS
AGREEMENT is made as of , by and between
PFPC TRUST COMPANY, a limited purpose trust company incorporated under the laws of Delaware (“PFPC Trust”), and CITIGROUP ALTERNATIVE INVESTMENTS MULTI-ADVISER HEDGE FUND PORTFOLIOS LLC, a Delaware limited liability company (the
“Fund”).
W I T N E S S E T H:
WHEREAS, the Fund is registered as a closed-end management investment company under the Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS, the Fund wishes to retain PFPC Trust to provide custodian services, and PFPC Trust wishes to furnish
custodian services, either directly or through an affiliate or affiliates, as more fully described herein.
NOW,
THEREFORE, in consideration of the premises and mutual covenants herein contained, and intending to be legally bound hereby, the parties hereto agree as follows:
1. |
Definitions. As Used in This Agreement: |
(a) |
“1933 Act” means the Securities Act of 1933, as amended. |
(b) |
“1934 Act” means the Securities Exchange Act of 1934, as amended. |
(c) |
“Affiliate” has the meaning described to that term in the 1940 Act. |
(d) |
“Authorized Person” means any officer of the Fund and any other person authorized by the Fund to give Oral or Written Instructions on behalf of
the Fund pursuant to a written notice delivered to PFPC Trust. The Fund may limit any Authorized Person’s scope of authority in a written notice delivered to PFPC |
1
Trust; provided that, after PFPC Trust’s receipt of such notice, any Oral or Written Instructions purported to be made by such Authorized Person that are
outside such Authorized Person’s authority (as so limited) shall not constitute Oral or Written Instructions to the extent that such Authorized Person’s authority is clearly exceeded. |
(e) |
“Book-Entry System” means Federal Reserve Treasury book-entry system for United States and federal agency securities, its successor or
successors, and its nominee or nominees and any book-entry system maintained by an exchange registered with the SEC under the 1934 Act. |
(f) |
“CEA” means the Commodities Exchange Act, as amended. |
(g) |
“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 rely upon instructions it receives from an Authorized Person via electronic mail as Oral Instructions. |
(h) |
“PFPC Trust” means PFPC Trust Company or a subsidiary or affiliate of PFPC Trust Company. |
(i) |
“SEC” means the Securities and Exchange Commission. |
(j) |
“Securities Laws” mean the 1933 Act, the 1934 Act, the 1940 Act and the CEA. |
(k) |
“Property” means: |
(i) |
any and all securities and other investment items which the Fund may from time to time deposit, or cause to be deposited, with PFPC Trust or which PFPC Trust
may from time to time hold for the Fund; |
(ii) |
all income in respect of any of such securities or other investment items; |
(iii) |
all proceeds of the sale of any of such securities or investment items; and |
2
(iv) |
all proceeds of the sale of securities issued by the Fund, which are received by PFPC Trust from time to time, from or on behalf of the Fund.
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(l) |
“Units” mean the units of beneficial interest of any series or class of the Fund. |
(m) |
“Written Instructions” mean (i) written instructions signed by two Authorized Persons and received by PFPC Trust or (ii) trade instructions
transmitted by (and received by PFPC Trust) 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; provided, however, that if delivered by electronic mail, it must be sent to at least two of the parties listed on the Authorized E-Mail Recipient List attached hereto as Schedule B. |
2. |
Appointment. The Fund hereby appoints PFPC Trust to provide custodian services to the Fund, on behalf of each of its investment series
as set forth on Exhibit A attached hereto and made a part hereof (each, a “Series” and together, the ““Series”“), and PFPC Trust accepts such appointment and agrees to furnish such services.
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3. |
Delivery of Documents. The Fund has provided or, where applicable, will provide PFPC Trust with the following:
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(a) |
at PFPC Trust’s request, certified or authenticated copies of the resolutions of the Fund’s Board of Directors, approving the appointment of PFPC
Trust or its affiliates to provide services; |
(b) |
a copy of the Fund’s most recent effective registration statement; |
(c) |
a copy of each Series’ advisory agreements; |
(d) |
a copy of the distribution/underwriting agreement with respect to any Units of the Fund; |
3
(e) |
a copy of each Series’ administration agreement; |
(f) |
copies of any distribution and/or shareholder servicing plans and agreements made in respect of the Fund or a Series; and |
(g) |
certified or authenticated copies of any and all amendments or supplements to the foregoing. |
4. |
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 Fund or any other entity.
5. |
Instructions. |
(a) |
Unless otherwise provided in this Agreement, PFPC Trust shall act only upon Oral Instructions or Written Instructions. |
(b) |
PFPC Trust shall be entitled to rely upon any Oral Instruction or Written Instruction it receives from an Authorized Person (or from a person reasonably
believed in good faith by PFPC Trust to be an Authorized Person) pursuant to this Agreement. PFPC Trust may assume that any Oral Instructions or Written Instructions received hereunder are not in any way inconsistent with the provisions of
organizational documents of the Fund or of any vote, resolution or proceeding of the Fund’s Board of Directors or of the Fund’s 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 |
4
Fund has 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 Fund agrees 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. Provided PFPC Trust acts in good faith and has no actual knowledge regarding the invalidity of Oral
Instructions, 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. |
6. Right
to Receive Advice.
(a) |
Advice of the Fund. If PFPC Trust is in doubt as to any action it should or should not take, PFPC Trust may request directions or
advice, including Oral Instructions or Written Instructions, from the Fund. |
(b) |
Advice of Counsel. If PFPC Trust shall be in doubt as to any question of law pertaining to any action it should or should not
take, PFPC Trust may request advice from counsel of its own choosing (who may be counsel for the Fund, the Fund’s investment adviser or PFPC Trust, at the option of PFPC Trust); provided, however, that such counsel and any related expense must
be approved in advance by the Fund. |
(c) |
Conflicting Advice. In the event of a conflict between directions or advice or Oral
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Instructions and/or Written Instructions PFPC Trust receives from the Fund, and the advice it receives from 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 Fund and/or counsel of the Fund’s choosing and the conflict is not resolved. |
(d) |
Protection of PFPC Trust. Subject to the second sentence of section 13, PFPC Trust shall be indemnified by the Fund and without liability for any action PFPC
Trust takes or does not take in good faith and reliance upon directions or reasonable advice or Oral Instructions or Written Instructions PFPC Trust receives from or on behalf of the Fund or from counsel and which action or inaction PFPC Trust
reasonably believes, in good faith, to be consistent with those directions or advice or Oral Instructions or Written Instructions. Nothing in this section shall be construed so as to impose an obligation upon PFPC Trust (i) to seek such directions
or advice or Oral Instructions or Written Instructions, or (ii) to act in accordance with such directions or advice or Oral Instructions or Written Instructions. |
7. |
Records; Visits. The books and records pertaining to the Fund and any Series, which are in the possession or under the
control of PFPC Trust, shall be the property of the 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 Fund, Authorized Persons and the staff of
the SEC or other applicable regulator shall have access to such books and records at all times during PFPC Trust’s normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by PFPC
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Trust to the Fund or to an authorized representative of the Fund, at the Fund’s expense. |
8. |
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, including, but not limited to, information about product plans, marketing strategies, investments,
investment 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 Fund or PFPC
Trust, their respective Affiliates 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 the Fund or PFPC Trust or their respective Affiliates a competitive advantage; (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
to the extent it: (a) is already known to the receiving party at the time it is obtained, provided it is obtained through no wrongful act of the receiving party or a wrongful act of another person that the receiving party knows to be wrongful; (b)
is or becomes publicly known or available through no wrongful act of the receiving party; (c) 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) is released
by the protected party to a third party without restriction; (e) is required to be disclosed by the receiving party
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7
pursuant to a requirement of a court order, subpoena, governmental or regulatory agency or law (provided the receiving party will provide the other party prompt written notice of such
requirement, to the extent such notice is permitted); (f) release of such information by PFPC Trust as necessary or appropriate in connection with the provision of services under this Agreement; (g) 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. |
9. |
Cooperation with Accountants. PFPC Trust shall cooperate with the Fund’s independent public accountants and shall take
all reasonable action to make any requested information available to such accountants as reasonably requested by the Fund. |
10. |
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 developed by and utilized by PFPC
Trust in connection with the services provided by PFPC Trust to the Fund. 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 the Fund or any of its or their Affiliates or furnished to PFPC Trust by the Fund or any of its or their Affiliates and all such rights, property and information shall remain vested in the Fund and/or its or their Affiliates. No
rights or licenses to any of the foregoing rights, property or information are implied or granted under this Agreement. |
11. |
Disaster Recovery. PFPC Trust shall enter into and shall maintain in effect with appropriate parties one or more
agreements making reasonable provisions for emergency
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use of electronic data processing equipment providing backup for carrying out PFPC Trust’s functions hereunder, and shall give the Fund notice of, and details relating to, such agreement(s)
at the Fund’s written request. The Fund shall have the right to review any such agreement or arrangement made on its behalf. In the event of equipment failures, PFPC Trust shall, at no additional expense to the Fund, take reasonable best
efforts 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 or such
third party’s willful misfeasance or willful misconduct, bad faith, gross negligence or reckless disregard of its duties or obligations under this Agreement. |
12. |
Compensation. As compensation for custody services rendered by PFPC Trust during the term of this Agreement, the Fund, on
behalf of each Series, will pay to PFPC Trust a fee or fees as may be agreed to in writing from time to time by the Fund and PFPC Trust. The Fund acknowledges that PFPC Trust may receive float benefits in connection with maintaining certain accounts
required to provide services under this Agreement. |
13. |
Indemnification. The Fund, on behalf of each Series, agrees to indemnify, defend and hold harmless PFPC Trust and
its Affiliates, including their respective officers, directors, agents and employees (each, a “Protected Person”) 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 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 Fund. Notwithstanding anything to the contrary contained herein, no Protected
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Person shall be indemnified against any liability (or any expenses incident to such liability) caused by PFPC Trust’s or any Protected Person’s willful misfeasance or willful
misconduct, bad faith, gross negligence or reckless disregard in the performance of PFPC Trust’s activities under this Agreement. The provisions of this Section 13 shall survive termination of this Agreement. |
14. |
Responsibility of PFPC Trust. |
(a) |
PFPC Trust shall be under no duty to take any action hereunder on behalf of the Fund or any Series except as specifically set forth herein or as may be
specifically agreed to by PFPC Trust and the Fund in writing. PFPC Trust shall be obligated to exercise due 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 to the extent such damages arise out of the willful misfeasance, willful misconduct, bad faith, gross
negligence or reckless disregard of PFPC Trust or any of its Affiliates (including their respective officers, directors and employees) in carrying out PFPC Trust’s 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
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utilities, transportation, computer or communications capabilities; insurrection; elements of nature; or non-performance of a third party caused by any of the foregoing; provided that PFPC Trust
has used reasonable efforts to minimize the impact of any of the foregoing on its ability to fully perform its obligations hereunder; and (ii) PFPC Trust shall not be under any duty or obligation to inquire into and shall not be liable for the
validity or invalidity, authority or lack thereof, or truthfulness or accuracy or lack thereof, of any instruction, direction, notice, instrument or other information which PFPC Trust reasonably believes in good faith to be genuine.
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(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 use commercially reasonable efforts (including indemnity payments) to mitigate damages for which the other party may become responsible.
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(e) |
Notwithstanding anything in this Agreement to the contrary (other than as specifically provided in Section 15(h)(ii)(B)(4) and Section 15(h)(iii)(A) of this
Agreement), the Fund shall be responsible for all filings, tax returns and reports on any transactions undertaken pursuant to this Agreement, or in respect of the Property or any collections undertaken pursuant to this Agreement, which may be
requested by any relevant authority. In addition, the Fund shall be responsible for the payment of all taxes and similar items (including without limitation penalties and interest related thereto). |
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(f) |
The provisions of this Section 14 shall survive termination of this Agreement. |
15. |
Description of Services. |
(a) |
Delivery of the Property. The Fund will deliver or arrange for delivery to PFPC Trust, all the Property owned by a Series,
including cash received as a result of the distribution of Units, during the term of this Agreement. PFPC Trust will not be responsible for such Property until actual receipt. |
(b) |
Receipt and Disbursement of Money. PFPC Trust, acting upon Written Instructions, shall open and maintain separate accounts in the
Fund’s name using all cash received from or for the account of the Fund, subject to the terms of this Agreement. In addition, upon Written Instructions, PFPC Trust shall open separate custodial accounts for each Series of the Fund
(collectively, the “Accounts”) and shall hold in the Accounts all cash received from or for the Accounts of the Fund specifically designated to each Series. |
PFPC |
Trust shall make cash payments from or for the Accounts of a Series only for: |
(i) |
purchases of securities in the name of a Series, 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 Fund delivered to PFPC Trust; |
(iii) |
payment of, subject to Written Instructions, interest, taxes (provided that a tax required to be deducted or withheld “at source” will be governed by
Section 15(h)(iii)(B) of this Agreement), administration, accounting, distribution, advisory and management fees which are to be borne by a Series; |
(iv) |
payment to, subject to receipt of Written Instructions, the Fund’s 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
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distributed in cash by the transfer agent to members, or, in lieu of paying the Fund’s transfer agent, PFPC Trust may arrange for the direct payment of
cash dividends and distributions to members in accordance with procedures mutually agreed upon from time to time by and among the Fund, PFPC Trust and the Fund’s transfer agent; |
(v) |
payments, upon receipt of Written Instructions, in connection with the conversion, exchange or surrender of securities owned or subscribed to by the Fund and
held by or delivered to PFPC Trust; |
(vi) |
payments of the amounts of dividends received with respect to securities sold short; |
(vii) |
payments to PFPC Trust for its services hereunder; |
(viii) |
payments to a sub-custodian pursuant to provisions in sub-section (c) of this Section; and |
(ix) |
other payments, upon Written Instructions. |
PFPC Trust is hereby authorized to endorse and collect all checks, drafts or other orders for the payment of money received as custodian for the Accounts.
(c) |
Receipt of Securities; Subcustodians. |
(i) |
PFPC Trust (and any sub-custodian) shall hold all securities received by it 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 depository. All such securities shall be held or disposed of only upon Written Instructions of the Fund pursuant to the terms of this
Agreement. PFPC Trust shall have no power or authority to assign, hypothecate, pledge or otherwise dispose of any such securities or investment, except upon the express terms of this Agreement or upon Written Instructions authorizing the
transaction. In no case may any member of the Fund’s Board of Directors, or any officer, employee or agent of the 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 an aggregate capital, surplus and undivided profits, according to its last published report, of at least one million dollars
($1,000,000), if it is a subsidiary or affiliate of PFPC Trust, or at least twenty million dollars ($20,000,000) if
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such bank or trust company is not a subsidiary or affiliate of PFPC Trust. In addition, such bank or trust company must be qualified to act as custodian and
agree to comply with the relevant provisions of applicable rules and regulations. Any such arrangement will not be entered into without prior written notice to the Fund (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. No such arrangement will be entered
into without prior written notice to the Fund (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 Series 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 Series as owner of any securities may be exercised; |
(iii) |
deliver any securities held for a Series 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 Series 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 Series 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 |
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instruments or documents as may be issued to it to evidence such delivery; |
(vi) |
make such transfer or exchanges of the assets of the Series and take such other steps as shall be stated in said Oral Instructions or Written Instructions to be
for the purpose of effectuating a duly authorized plan of liquidation, reorganization, merger, consolidation or recapitalization of the Fund; |
(vii) |
release securities belonging to a Series to any bank or trust company for the purpose of a pledge or hypothecation to secure any loan incurred by the Fund on
behalf of that Series; 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;
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(viii) |
release and deliver securities owned by a Series in connection with any repurchase agreement entered into by the Fund on behalf of that Series, but only on
receipt of payment therefor; and pay out monies of the Fund in connection with such repurchase agreements, but only upon the delivery of the securities; |
(ix) |
release and deliver or exchange securities owned by a Series in connection with any conversion of such securities, pursuant to their terms, into other
securities; |
(x) |
release and deliver securities owned by a Series to a broker in connection with the broker’s custody of margin collateral relating to futures and options
transactions; |
(xi) |
release and deliver securities owned by a Series for the purpose of redeeming in kind shares of such Series upon delivery thereof to PFPC Trust; and
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(xii) |
release and deliver or exchange securities owned by a Series 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 is authorized and |
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instructed, on a continuous basis, to deposit in Book-Entry Systems and other depositories all securities belonging to the Series eligible for deposit therein
and to utilize Book-Entry Systems and other depositories to the extent possible in connection with settlements of purchases and sales of securities by the Series, and deliveries and returns of securities loaned, subject to repurchase agreements or
used as collateral in connection with borrowings. PFPC Trust shall continue to perform such duties until it receives Written Instructions or Oral Instructions authorizing contrary actions. |
PFPC Trust shall administer a Book-Entry System or other depository as follows:
(i) |
With respect to securities of each Series 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 belonging to each Series. |
(ii) |
Assets of each Series 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 Fund with such reports on its own system of internal control as the Fund may reasonably request from time to time.
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(f) |
Registration of Securities. All securities held for a Series which are issued or issuable only in bearer form, except such
securities held in the Book-Entry System or in another depository, shall be held by PFPC Trust in bearer form; all other securities held for a Series may be registered in the name of the Fund on behalf of that Series, PFPC Trust, a Book-Entry
System, another depository, a sub-custodian, or any duly appointed nominee of the Fund, PFPC Trust, |
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Book-Entry System, depository or sub-custodian. The Fund reserves the right to instruct PFPC Trust as to the method of registration and safekeeping of the
securities of the Fund. The Fund agrees to furnish to PFPC Trust appropriate instruments to enable PFPC Trust to hold or deliver in proper form for transfer, or to register in the name of its nominee or in the name of the Book-Entry System or in the
name of another appropriate entity, any securities which it may hold for the Accounts. |
(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 Series, except in accordance with Written Instructions. PFPC Trust, directly or through the use of another entity, shall execute in blank and promptly deliver all notices, proxies and proxy soliciting materials received by PFPC
Trust as custodian of the Property to the registered holder of such securities. If the registered holder is not the Fund on behalf of a Series, then Written Instructions or Oral Instructions must designate the person who owns such securities.
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(h) |
Transactions Not Requiring Instructions. In the absence of contrary Written Instructions, PFPC Trust is authorized to take the
following actions: |
(i) |
Collection of Income and Other Payments. |
(A) |
collect and receive for the account of each Series, 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 Series of such receipt and credit such income to each Series’ custodian account; |
(B) |
endorse and deposit for collection, in the name of the Fund, checks, drafts, or other orders for the payment of money; |
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(C) |
receive and hold for the account of each Series all securities received as a distribution on the Series’ 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 Series and held by PFPC Trust hereunder;
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(D) |
present for payment and collect the amount payable upon all securities which may mature or be called, redeemed, retired or otherwise become payable (on a
mandatory basis) on the date such securities become payable; and |
(E) |
take any action which may be necessary and proper in connection with the collection and receipt of such income and other payments and the endorsement for
collection of checks, drafts, and other negotiable instruments. |
(ii) |
Miscellaneous Transactions. |
(A) |
PFPC Trust is authorized to deliver or cause to be delivered Property against payment or other consideration or written receipt therefor in the following cases:
|
(1) |
for examination by a broker or dealer selling for the account of a Series in accordance with street delivery custom; |
(2) |
for the exchange of interim receipts or temporary securities for definitive securities; and |
(3) |
for transfer of securities into the name of the Fund on behalf of a Series or PFPC Trust or a sub-custodian or a nominee of one of the foregoing, or for
exchange of securities for a different number of bonds, certificates, or other evidence, representing the same aggregate face amount or number of units bearing the same interest rate, maturity date and call provisions, if any; provided that, in any
such case, the new securities are to be delivered to PFPC Trust. |
(B) |
unless and until PFPC Trust receives Oral Instructions or Written Instructions to the contrary, PFPC Trust shall: |
(1) |
pay all income items held by it which call for payment upon |
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presentation and hold the cash received by it upon such payment for the account of each Series; |
(2) |
collect interest and cash dividends received, with notice to the Fund, to the account of each Series; |
(3) |
hold for the account of each Series all stock dividends, rights and similar securities issued with respect to any securities held by PFPC Trust; and
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(4) |
subject to receipt of such documentation and information as PFPC Trust may request, execute as agent on behalf of the 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 the Fund’s name, on behalf of a Series, on such certificate as the owner of the securities covered thereby, to the
extent it may lawfully do so. |
(iii) |
Other Matters. |
(A) |
subject to receipt of such documentation and information as PFPC Trust may request, PFPC Trust will, in such jurisdictions as PFPC Trust may agree from time to
time, seek to reclaim or obtain a reduction with respect to any withholdings or other taxes relating to assets maintained hereunder (provided that PFPC Trust will not be liable for failure to obtain any particular relief in a particular
jurisdiction); and |
(B) |
PFPC Trust is authorized to deduct or withhold any sum in respect of tax which PFPC Trust considers is required to be deducted or withheld “at source”
by any relevant law or practice. |
(i) |
Segregated Accounts. |
(i) |
PFPC Trust shall upon receipt of Written Instructions or Oral Instructions establish and maintain segregated accounts on its records for and on behalf of each
Series. 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 Fund 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 |
19
(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 Fund’s
prospectuses, the Internal Revenue Code of 1986, as amended (including regulations promulgated thereunder), and with such other procedures as are mutually agreed upon from time to time by and among the Fund, PFPC Trust and the Fund’s transfer
agent. |
(j) |
Purchases of Securities. PFPC Trust shall settle purchased securities upon receipt of Oral Instructions or Written Instructions
that specify: |
(i) |
the name of the issuer and the title of the securities, including CUSIP number if applicable; |
(ii) |
the number of shares or the principal amount purchased and accrued interest, if any; |
(iii) |
the date of purchase and settlement; |
(iv) |
the purchase price per unit; |
(v) |
the total amount payable upon such purchase; |
(vi) |
the Series 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 Series (or
otherwise in accordance with standard market practice) pay out of the monies held for the account of the Series 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 specified 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; |
20
(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 Series involved. |
PFPC Trust shall deliver the securities upon receipt of the total amount payable to the Series upon such sale, provided that the total amount payable is the same as was specified in the Oral Instructions or Written Instructions.
Notwithstanding the other provisions hereof, 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 Fund the following reports:
(A) |
such periodic and special reports as the Fund may reasonably request; |
(B) |
a monthly statement summarizing all transactions and entries for the account of each Series, listing each portfolio security belonging to each Series with the
adjusted average cost of each issue and the market value at the end of such month and stating the cash account of each Series including disbursements; |
(C) |
the reports required to be furnished to the Fund pursuant to Rule 17f-4 of the 1940 Act; and |
(D) |
such other information as may be agreed upon from time to time between the Fund and PFPC Trust. |
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(ii) |
PFPC Trust shall transmit promptly to the Fund any proxy statement, proxy material, notice of a call or conversion or similar communication received by it as
custodian of the Property. PFPC Trust shall be under no other obligation to inform the Fund as to such actions or events. For clarification, upon termination of this Agreement PFPC Trust shall have no responsibility to transmit such material or to
inform the Fund or any other person of such actions or events. |
(m) |
Crediting of Accounts. If PFPC Trust in its sole discretion credits an Account with respect to (a) income, dividends, distributions, coupons, option
premiums, other 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 Fund.
Nothing herein or otherwise shall require PFPC Trust to make any advances or to credit any amounts until PFPC Trust’s actual receipt thereof. The |
22
Fund hereby grants 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.
(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 Fund. If payment is not received by PFPC Trust within a reasonable time after proper demands have been made, PFPC Trust shall notify the Fund in writing, including
copies of all demand letters, any written responses and memoranda of all oral responses and shall await instructions from the Fund. PFPC Trust shall not be obliged to take legal action for collection unless and until reasonably indemnified to its
satisfaction. PFPC Trust shall also notify the Fund as soon as reasonably practicable whenever income due on securities is not collected in due course and shall provide the Fund with periodic status reports of such income collected after a
reasonable time. |
(o) |
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.
16. |
Duration and Termination. This Agreement shall continue until terminated by the Fund on ninety (90) days’ prior
written notice to the other party or by PFPC Trust on one year’s prior notice to the Fund. In the event this Agreement is terminated (pending |
23
appointment of a successor to PFPC Trust or vote of the members of the Fund to
dissolve or to function without a custodian of its cash, securities or other property), PFPC Trust shall not deliver cash, securities or other property of the Series to the Fund. It may deliver them to a bank or trust company of PFPC Trust’s
choice, having an aggregate capital, surplus and undivided profits, as shown by its last published report, of not less than twenty million dollars ($20,000,000), as a custodian for the Fund 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 (such expenses include, without limitation,
reasonable expenses associated with movement (or duplication) of records and materials and conversion thereof to a successor service provider, or to a bank or trust company pending appointment of such successor, and all trailing expenses incurred by
PFPC Trust). PFPC Trust shall have a 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. If PFPC Trust gives notice of termination, the Fund will be
reimbursed for reasonable out-of-pocket costs related directly to deconversion, provided that PFPC Trust pre-approves payment of such costs.
17. |
Notices. Notices shall be addressed (a) if to PFPC Trust at 0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxx Xxxxxxxx; (b) if to the Fund, at 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx XxXxxxxxx; 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, hand or facsimile sending device, it shall be
|
24
deemed to have been given immediately. For purposes of this section only, electronic mail shall not be deemed written
notice.
19. |
Amendments. This Agreement, or any term hereof, may be changed or waived only by a written amendment, signed by the party
against whom enforcement of such change or waiver is sought. |
20. |
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 Fund 45 days’ prior written notice of such assignment or delegation and such assignment or delegation is approved in writing by the Fund, such consent not to be
unreasonably withheld or delayed. |
21. |
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. |
22. |
Miscellaneous. |
(a) |
Entire Agreement. This Agreement embodies the entire agreement and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof, provided that the parties may embody in one or more separate documents their agreement, if any, with respect to delegated duties and/or with respect to service levels or other
matters as contemplated herein. |
(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 Fund or any other person, regarding quality, |
25
suitability, merchantability, fitness for a particular purpose or otherwise
(irrespective of any course of dealing, custom or usage of trade), of any services or any goods provided incidental to services provided under this Agreement. PFPC Trust disclaims any warranty of title or non-infringement except as otherwise set
forth in this Agreement.
(c) |
No Changes that Materially Affect Obligations. Notwithstanding anything in this Agreement to the contrary, the Fund agrees to
provide PFPC Trust with prior notice sufficient for PFPC Trust to evaluate the impact of any modifications to its registration statement or adoption of any policies that would increase materially the obligations or responsibilities of PFPC Trust
hereunder, which shall not be made without reasonable consultation with PFPC Trust. |
(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) |
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. |
26
(h) |
Facsimile Signatures. The facsimile signature of any party to this Agreement shall constitute the valid and binding execution
hereof by such party. |
27
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above
written.
PFPC TRUST COMPANY
By:
Title:
CITIGROUP ALTERNATIVE INVESTMENTS MULTI-
ADVISER HEDGE FUND PORTFOLIOS LLC
By:
Title:
28
EXHIBIT A
List of Series
Series M
Series G
29
SCHEDULE B
LIST OF AUTHORIZED E-MAIL RECIPIENTS
30