EXHIBIT 99.2(j)(i)
CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of , 2004 by and between PFPC
TRUST COMPANY, a limited purpose trust company incorporated under the laws of
Delaware ("PFPC Trust"), and THE TOPIARY MASTER FUND FOR BENEFIT PLAN
INVESTORS (BPI) 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, non-diversified
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:
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(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 the Fund and any other
person authorized by the Fund on an Authorized Persons List attached hereto to
give Oral or Written Instructions on behalf of the Fund, or any person
reasonably believed by PFPC Trust to be so authorized. An Authorized Person's
scope of authority may be limited by setting forth such limitation in a
written document signed by both parties hereto.
(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) "Change of Control" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect subsidiaries of
a common parent) of 25% or more of the beneficial ownership of the shares of
common stock or shares of beneficial interest of an entity or its parent(s).
(h) "Units" mean the beneficial interest of any series or class of the
Fund.
(i) "Oral Instructions" mean oral instructions received by PFPC Trust
from an Authorized Person. PFPC Trust may, in its sole discretion in each
separate instance, consider and rely upon instructions it receives from an
Authorized Person via electronic mail as Oral Instructions.
(j) "PFPC Trust" means PFPC Trust Company or a subsidiary or affiliate of
PFPC Trust Company.
(k) "SEC" means the Securities and Exchange Commission.
(l) "Securities" means Securities (including without limitation equities,
debt obligations, options, and other "securities" as that term is defined in
Section 2(a)(36) of the ▇▇▇▇ ▇▇▇) and any contracts for forward or future
delivery of any security debt obligation, all manner of derivative instruments
and any contracts based on any index or group of Securities or debt
obligations, and any options thereon, as well as investments in registered
investment companies and private investment funds.
(m) Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(n) "Property" means:
(i) any and all Securities and other investment items which the
Fund may from time to time deposit, or cause to be deposited,
with PFPC Trust or which PFPC Trust may from time to time hold
for the Fund;
(ii) all income in respect of any of such Securities or other
investment items;
(iii) all proceeds of the sale of any of such Securities or
investment items; and
(iv) all proceeds of the sale of Securities issued by the Fund,
which are received by PFPC Trust from time to time, from or on
behalf of the Fund.
(o) "Written Instructions" mean (i) written instructions signed by two
Authorized Persons and received by PFPC Trust or (ii) trade instructions
transmitted by means of an electronic transaction reporting system which
requires the use of a password or other authorized
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identifier in order to gain access. The instructions may be delivered
electronically or by hand, mail or facsimile sending device.
2. Appointment. The Fund hereby appoints PFPC Trust to provide custodian
services to the Fund and PFPC Trust accepts such appointment and agrees
to furnish such services.
3. Delivery of Documents. The Fund has provided or, where applicable, will
provide PFPC Trust with the following:
(a) at PFPC Trust's request, certified or authenticated copies of the
resolutions of the Fund's 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 the Fund's limited liability company operating agreement;
(d) a copy of the Fund's advisory agreements;
(e) a copy of the distribution/underwriting agreement with respect to
the Fund;
(f) a copy of the Fund's administration agreement;
(g) copies of any distribution and/or member servicing plans and
agreements made in respect of the Fund; and
(h) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. Compliance with Laws.
PFPC Trust undertakes to comply with applicable requirements of the
Securities Laws and of 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.
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(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 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
directors or of the Fund's members, unless and until PFPC Trust
receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Trust Written Instructions
confirming Oral Instructions given on behalf of the Fund (except
where such Oral Instructions are given by PFPC Trust or its
affiliates) and shall endeavor to ensure that PFPC Trust receives
the Written Instructions by the close of business on the same day
that such Oral Instructions are received. The fact that such
confirming Written Instructions are not received by PFPC Trust 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. Where Oral Instructions or Written Instructions
reasonably appear to have been received from an Authorized Person,
PFPC shall incur no liability to the Fund in acting upon such Oral
Instructions or Written Instructions provided that PFPC's actions
comply with the other provisions of this Agreement.
6. Right to Receive Advice.
(a) Advice of the Fund. If PFPC Trust is in doubt as to any action it
should or should
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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
the Fund will be responsible only for reasonable legal expenses
arising out of such advice.
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC Trust
receives from the Fund, and the advice it receives from counsel,
PFPC Trust shall be entitled to rely upon and follow the advice of
counsel. PFPC Trust shall promptly inform the Fund of such conflict,
and PFPC Trust shall refrain from acting in the event of a conflict,
unless counsel advises PFPC Trust that failure to take action is
likely to result in additional loss, liability, or expense. In the
event PFPC Trust relies on the advice of counsel, PFPC Trust remains
liable for any action or omission on the part of PFPC Trust that
constitutes willful misfeasance, bad faith, gross negligence. or
reckless disregard by PFPC Trust of any duties, obligations, or
responsibilities set forth in this Agreement.
(d) Protection of PFPC Trust. PFPC Trust shall be indemnified by the
Fund and without liability for any action PFPC Trust takes or does
not take in reliance upon directions or advice or Oral Instructions
or Written Instructions PFPC Trust receives from or on behalf of the
Fund or from counsel and which PFPC Trust
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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
unless, under the terms of the other provisions of this Agreement,
the same is a condition of PFPC Trust's properly taking or not
taking such action. Nothing in this subsection shall excuse PFPC
Trust when an action or omission on the part of PFPC Trust
constitutes willful misfeasance, bad faith, gross negligence, or
reckless disregard of its duties, obligations, or responsibilities
set forth in this Agreement.
7. Records; Visits. The books and records pertaining to the Fund, 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 and Authorized Persons shall have access to such books and records at
all times during PFPC Trust's normal business hours. Upon the reasonable
request of the Fund, copies of any such books and records shall be provided by
PFPC Trust to the Fund or to an Authorized Person, at the Fund's expense. To
the extent required by, and in the manner prescribed by and in accordance
with, the 1940 Act, the books and records of PFPC Trust pertaining to its
actions under this Agreement and reports by PFPC Trust or its independent
accountants concerning its accounting system, procedures for safeguarding
Securities, and internal accounting controls will be open to inspection and
audit at reasonable times by officers, employees, or agents of the Fund or
auditors employed by the Fund and will be preserved by PFPC
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Trust.
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, and not generally known to the
public, including, but not limited to, information about product plans,
marketing strategies, finances, operations, customer relationships,
customer profiles, customer lists, sales estimates, business plans, and
internal performance results relating to the past, present or future
business activities of the Fund or PFPC Trust, their respective
subsidiaries and affiliated companies 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 a competitive advantage over its competitors; (c) all
confidential or proprietary concepts, documentation, reports, data,
specifications, computer software, source code, object code, flow charts,
databases, inventions, know-how, and trade secrets, whether or not
patentable or copyrightable; and (d) anything designated as confidential.
Notwithstanding the foregoing, information shall not be subject to such
confidentiality obligations if it: (a) is already known to the receiving
party at the time it is obtained (other than as a result of disclosure by
the other party under similar confidentiality obligations); (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 pursuant to a requirement of a court order, subpoena,
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governmental or regulatory agency or law (provided the receiving party
will provide the other party written notice of such requirement, to the
extent such notice is permitted); (f) is relevant to the defense of any
claim or cause of action asserted against the receiving party; or (g) has
been or is independently developed or obtained by the receiving party. If
any party to this Agreement or any of such party's affiliates or their
respective employees, officers, agents, or representatives (hereinafter,
"Qualified Persons") 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, on its own behalf or on behalf of such party's
Qualified Person, will promptly notify such other party of such request
or requirement so that such other party may seek an appropriate
protective order or waive compliance with provisions of this Agreement.
If, in the absence of a protective order or the receipt of a waiver
hereunder, such party or such party's Qualified Person subject to the
disclosure request or requirement is, in the written opinion of such
party's counsel addressed to such other party (the reasonable costs of
which shall be paid by such other party), compelled to disclose the
Confidential Information or else stand liable for contempt or suffer
other censure or significant penalty, such party or such party's
Qualified Person subject to the disclosure request or requirement may
disclose only such of the Confidential Information to the party
compelling disclosure as is required by law. Any party that discloses
Confidential Information pursuant to the foregoing sentence shall not be
liable for the disclosure of such Confidential Information to the other
party unless such disclosure was caused by such party's or such party's
Qualified Person's action or inaction that (i) constitutes willful
misfeasance, bad faith, gross negligence, or reckless disregard of their
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duties hereunder subject to the disclosure request or requirement or (ii)
is not otherwise permitted by this Agreement.
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 base technology, computer programs, screen formats, report
formats, interactive design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters, concepts, expertise,
patents, copyrights, trade secrets, and other related legal rights
utilized by PFPC Trust in connection with the services provided by PFPC
Trust to the Fund.
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 use of electronic data processing equipment,
including the maintenance of an offsite disaster recovery site from which
PFPC can meet its obligations hereunder in the event that its primary
facility is unavailable. In the event of equipment failures, PFPC Trust
shall, at no additional expense to the Fund, take reasonable steps to
minimize service interruptions. PFPC Trust shall have no liability with
respect to the loss of data or service interruptions caused by equipment
failure provided such loss or interruption is not caused by PFPC Trust's
own willful misfeasance, 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
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the term of this Agreement, the Fund 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 agrees to indemnify and hold harmless PFPC
Trust and its affiliates, including their respective officers, directors,
agents and employees, from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation, attorneys' fees
and disbursements and liabilities arising under the Securities Laws
and any state and foreign Securities Laws and blue sky laws) arising
directly or indirectly from any action or omission to act that PFPC Trust
takes in connection with the provision of services to the Fund; under
this Agreement. Neither PFPC Trust nor any of its affiliates shall be
indemnified against any liability (or any expenses incident to such
liability) arising out of or caused by PFPC Trust's or its affiliates'
own willful misfeasance, bad faith, gross negligence or reckless disregard
in the performance of PFPC Trust's activities under this Agreement.
Notwithstanding anything in this Agreement to the contrary, neither the
Fund nor its affiliates shall be liable for any consequential, special or
indirect losses or damages whether or note likelihood of such damages or
loss was known by the Fund or its affiliates.
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 except as specifically set forth herein or as may be
specifically agreed to by PFPC Trust
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and the Fund in a written amendment hereto. PFPC Trust shall be obligated
to exercise care and diligence in the performance of its duties hereunder
and to act in good faith in performing services provided for under this
Agreement. PFPC Trust shall be liable only for any damages arising out of
PFPC Trust's failure to perform its duties under this Agreement to the
extent such damages arise out of PFPC Trust's willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties under this
Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, (i) PFPC
Trust shall not be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or indirectly by
reason of circumstances beyond its reasonable control, including
without limitation acts of God; action or inaction of civil or
military authority; public enemy; war; terrorism; riot; fire; flood;
sabotage; epidemics; labor disputes; civil commotion; interruption,
loss or malfunction of utilities, transportation, computer or
communications capabilities; insurrection; elements of nature; or
non-performance by a third party; 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 that conforms to
the applicable requirements of this Agreement and that PFPC Trust
reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, (i)
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 and (ii) PFPC Trust's cumulative liability to the
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Fund for all losses, claims, suits, controversies, breaches or
damages for any cause whatsoever (including but not limited to those
arising out of or related to this Agreement) and regardless of the
form of action or legal theory shall not exceed the lesser of
$200,000 or the fees received by PFPC Trust for services provided
hereunder during the 24 months immediately prior to the date of such
loss or damage.
(d) Any cause of action asserted by the Fund against PFPC Trust or any
of its affiliates must be asserted within the 12 month period
immediately after the Fund or its affiliate(s) obtained actual
knowledge of such cause of action.
(e) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
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 the Fund,
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.
PFPC Trust shall make cash payments from or for the Accounts only
for:
(i) purchases of Securities in the name of the Fund, PFPC Trust,
PFPC
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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,
administration, accounting, distribution, advisory, management
fees or similar expenses which are to be borne by the Fund;
(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 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 made to a sub-custodian pursuant to provisions in
sub-section (c) of this Section; and
(viii) other payments, upon Written Instructions.
PFPC Trust is hereby authorized to endorse and collect all checks, drafts
or other orders for the payment of money received as custodian for the
Accounts.
(c) Receipt of Securities; Subcustodians.
(i) PFPC Trust shall hold all Securities received by it for the
Accounts in a separate account that physically segregates such
Securities from those of any other persons, firms or
corporations, except for Securities held in a Book-Entry
System. 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
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Written Instructions authorizing the transaction. In no case
may any member of the Fund's 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 that are banks as defined in the 1940 Act to
perform duties described in this sub-section (c) with respect
to domestic assets. Such bank or trust company shall have an
aggregate capital, surplus and undivided profits, according to
its last published report, of at least one million dollars
($1,000,000), if it is a subsidiary or affiliate of PFPC Trust,
or at least twenty million dollars ($20,000,000) if such bank
or trust company is not a subsidiary or affiliate of PFPC
Trust. In addition, such bank or trust company must be
qualified to act as custodian and agree to comply with the
relevant provisions of the 1940 Act and other applicable rules
and regulations. 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. Any such arrangement will be entered into with prior
written notice to the Fund (or as otherwise provided in the
1940 Act).
PFPC Trust shall remain responsible for the performance of all
of its duties as described in this Agreement and shall hold the
Fund harmless from its own acts or omissions, under the
standards of care provided for herein, or the acts and
omissions of any sub-custodian chosen by PFPC Trust under the
terms of this sub-section (c).
(d) Transactions Requiring Instructions. Upon receipt of Oral
Instructions or Written Instructions and not otherwise, PFPC Trust,
directly or through the use of the Book-Entry System, shall:
(i) deliver any Securities held for the Fund against the receipt of
payment for the sale of such Securities;
(ii) execute and deliver to such persons as may be designated in
such Oral Instructions or Written Instructions, proxies,
consents, authorizations, and any other instruments whereby the
authority of the Fund as owner of any Securities may be
exercised;
(iii) deliver any Securities to the issuer thereof, or its agent,
when such
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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 the Fund against receipt of
other Securities or cash issued or paid in connection with the
liquidation, reorganization, refinancing, tender offer, merger,
consolidation or recapitalization of any corporation, or the
exercise of any conversion privilege;
(v) deliver any Securities held for the Fund to any protective
committee, reorganization committee or other person in
connection with the reorganization, refinancing, merger,
consolidation, recapitalization or sale of assets of any
corporation, and receive and hold under the terms of this
Agreement such certificates of deposit, interim receipts or
other instruments or documents as may be issued to it to
evidence such delivery;
(vi) make such transfer or exchanges of the assets of the Fund and
take such other steps as shall be stated in said Oral
Instructions or Written Instructions to be for the purpose of
effectuating a duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of
the Fund;
(vii) release Securities belonging to the Fund to any bank or trust
company for the purpose of a pledge or hypothecation to secure
any loan incurred by the Fund; provided, however, that
Securities shall be released only upon payment to PFPC Trust of
the monies borrowed, except that in cases where additional
collateral is required to secure a borrowing already made
subject to proper prior authorization, further Securities may
be released for that purpose; and repay such loan upon
redelivery to it of the Securities pledged or hypothecated
therefor and upon surrender of the note or notes evidencing the
loan;
(viii) release and deliver Securities owned by the Fund in
connection with any repurchase agreement entered into on behalf
of the Fund, but only on receipt of payment therefor; and pay
out moneys 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 the Fund in
connection with any conversion of such Securities, pursuant to
their terms, into other Securities;
(x) release and deliver Securities to a broker in connection with
the broker's custody of margin collateral relating to futures
and options transactions;
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(xi) release and deliver Securities owned by the Fund for the
purpose of redeeming in kind shares of the Fund upon delivery
thereof to PFPC Trust; and
(xii) release and deliver or exchange Securities owned by the Fund
for other purposes.
PFPC Trust must also receive a certified resolution describing
the nature of the corporate purpose and the name and address of
the person(s) to whom delivery shall be made when such action
is pursuant to sub-paragraph d(xii).
(e) Use of Book-Entry System. PFPC Trust is authorized and instructed,
on a continuous basis, to deposit in the Book-Entry System all
Securities belonging to the Fund eligible for deposit therein and to
utilize the Book-Entry System to the extent possible in connection
with settlements of purchases and sales of Securities by the Fund,
and deliveries and returns of Securities loaned, subject to
repurchase agreements or used as collateral in connection with
borrowings. PFPC Trust shall continue to perform such duties until
it receives Written Instructions or Oral Instructions authorizing
contrary actions.
PFPC Trust shall administer the Book-Entry System as follows:
(i) With respect to Securities of the Fund which are maintained in
the Book-Entry System, the records of PFPC Trust shall identify
by Book-Entry or otherwise those Securities belonging to the
Fund.
(ii) Assets of the Fund deposited in the Book-Entry System will 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.
(f) Registration of Securities. All Securities held for the Fund which
are issued or
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issuable only in bearer form, except such Securities held in the
Book-Entry System, shall be held by PFPC Trust in bearer form; all
other Securities held for the Fund may be registered in the name of
the Fund, PFPC Trust, the Book-Entry System, a sub-custodian, or any
duly appointed nominee of the Fund, PFPC Trust, Book-Entry System 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 and which
may from time to time be registered in the name of the Fund.
(g) Voting and Other Action. Neither PFPC Trust nor its nominee shall
vote any of the Securities held pursuant to this Agreement by or for
the account of the Fund, except in accordance with Written
Instructions. PFPC Trust, directly or through the use of the
Book-Entry System, 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, then Written
Instructions or Oral Instructions must designate the person who owns
such Securities.
(h) Transactions Not Requiring Instructions. In the absence of contrary
Written Instructions, PFPC Trust is authorized to take the following
actions:
(i) Collection of Income and Other Payments.
(A) collect and receive for the account of the Fund, all
income,
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dividends, distributions, coupons, option premiums, other
payments and similar items, included or to be included in
the Property, and, in addition, promptly advise the Fund
of such receipt and credit such income, as collected, to
the Fund's custodian account;
(B) endorse and deposit for collection, in the name of the
Fund, checks, drafts, or other orders for the payment of
money;
(C) receive and hold for the account of the Fund all
Securities received as a distribution on the Fund's
Securities as a result of a stock dividend, share split-up
or reorganization, recapitalization, readjustment or other
rearrangement or distribution of rights or similar
Securities issued with respect to any Securities belonging
to the Fund and held by PFPC Trust hereunder;
(D) present for payment and collect the amount payable upon
all Securities that may mature or be, on a mandatory
basis, called, redeemed, or retired, or otherwise become
payable on the date such Securities become payable; and
(E) take any action which may be necessary and proper in
connection with the collection and receipt of such income
and other payments and the endorsement for collection of
checks, drafts, and other negotiable instruments.
(ii) Miscellaneous Transactions.
(A) PFPC Trust is authorized to deliver or cause to be
delivered Property against payment or other consideration
or written receipt therefor in the following cases:
(1) for examination by a broker or dealer selling for the
account of the Fund in accordance with street
delivery custom;
(2) for the exchange of interim receipts or temporary
Securities for definitive Securities; and
(3) for transfer of Securities into the name of the Fund
or PFPC Trust or a sub-custodian or a nominee of one
of the foregoing, or for exchange of Securities for a
different number of bonds, certificates, or other
evidence, representing the same aggregate face amount
or number of units bearing the same interest rate,
maturity date and call
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provisions, if any; provided that, in any such case,
the new Securities are to be delivered to PFPC Trust.
(B) unless and until PFPC Trust receives Oral Instructions or
Written Instructions to the contrary, PFPC Trust shall:
(1) pay all income items held by it which call for
payment upon presentation and hold the cash received
by it upon such payment for the account of the Fund;
(2) collect interest and cash dividends received, with
notice to the Fund, to the account of the Fund;
(3) hold for the account of the Fund all stock dividends,
rights and similar Securities issued with respect to
any Securities held by PFPC Trust; and
(4) execute as agent on behalf of the Fund all necessary
ownership certificates required by the Internal
Revenue Code or the Income Tax Regulations of the
United States Treasury Department or under the laws
of any state now or hereafter in effect, inserting
the Fund's name on such certificate as the owner of
the Securities covered thereby, to the extent it may
lawfully do so.
(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 the Fund. Such accounts may be
used to transfer cash and Securities, including Securities in
the Book-Entry System:
(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
(B) upon receipt of Written Instructions, for other purposes.
(ii) PFPC Trust shall arrange for the establishment of ▇▇▇ custodian
accounts for such members holding Units through ▇▇▇ 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
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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; and
(vi) the name of the person from whom or the broker through whom the
purchase was made. PFPC Trust shall upon receipt of Securities
purchased by or for the Fund pay out of the moneys held for the
account of the Fund the total amount payable to the person from
whom or the broker through whom the purchase was made, provided
that the same conforms to the total amount payable as set forth
in such Oral Instructions or Written Instructions.
(k) Sales of Securities. PFPC Trust shall settle sold Securities upon
receipt of Oral Instructions or Written Instructions that specify:
(i) the name of the issuer and the title of the security, including
CUSIP number if applicable;
(ii) the number of shares or principal amount sold, and accrued
interest, if any;
(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; and
(vii) the location to which the security must be delivered and
delivery deadline, if any.
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PFPC Trust shall deliver the Securities upon receipt of the total amount
payable to the Fund upon such sale, provided that the total amount
payable is the same as was set forth in the Oral Instructions or Written
Instructions. Notwithstanding the other provisions thereof, PFPC Trust
may accept payment in such form as is consistent with industry practice
or is satisfactory to it, 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 the Fund, listing each
portfolio security belonging to the Fund with the adjusted
average cost of each issue and the market value at the end
of such month and stating the cash account of the Fund
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.
(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.
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(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 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 reasonable
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
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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.
16. Duration and Termination. This Agreement shall continue until terminated
by the Fund or PFPC Trust on sixty (60) days' prior written notice to the
other party by certified mail with confirmed receipt. In the event this
Agreement is terminated (pending appointment of a successor to PFPC Trust
or vote of the members of the Fund to dissolve or to function without a
custodian of its cash, Securities or other property), PFPC Trust shall
not deliver cash, Securities or other property of the Fund to the Fund.
It may deliver them to a bank or trust company of PFPC Trust's choice,
having an aggregate capital, surplus and undivided profits, as shown by
its last published report, of not less than twenty million dollars
($20,000,000), and which meets the requirements of Rule 17(f)(1) under
the 1940 Act 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, expenses associated
with movement (or duplication) of records and materials and conversion
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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.
17. Notices. Subject to Section 16, Notices shall be addressed (a) if to PFPC
Trust at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇▇▇; (b) if to the Fund, at ▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇; 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 deemed to have
been given immediately. If notice is sent by first-class mail, it shall
be deemed to have been given five days after it has been mailed. If
notice is sent by messenger, it shall be deemed to have been given on the
day it is delivered.
18. Amendments. This Agreement, or any term hereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
19. Delegation; Assignment. PFPC Trust may assign its rights and delegate its
duties hereunder at no additional cost to any affiliate of PFPC Trust or
of The PNC Financial Services Group, Inc., provided that (i) PFPC Trust
gives the Fund sixty (60) days' prior written notice of such assignment
or delegation; (ii) the assignee or delegate agrees to comply with the
relevant provisions of the Securities Laws; and (iii) PFPC Trust and such
assignee or delegate promptly provide such information as the Fund may
request, and
-24-
respond to such questions as the Fund may ask, relative to the assignment
or delegation, (including, without limitation) or the capabilities of the
assignee or delegate. Except as stated above, this Agreement may not be
assigned or delegated by either party without the written consent of the
other party.
20. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
21. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
22. Miscellaneous.
(a) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof,
provided that the parties may embody in one or more separate
documents their agreement, if any, with respect to delegated duties.
(b) 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 the adoption of any policies that would affect
materially the obligations or responsibilities of PFPC Trust
hereunder.
(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.
-25-
(d) 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.
(e) 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.
(f) 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.
(g) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
-26-
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:
THE TOPIARY MASTER FUND FOR BENEFIT PLAN
INVESTORS (BPI) LLC
By:
--------------------------
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