CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of January 24, 2001 by and between PFPC TRUST
COMPANY, a limited purpose trust company incorporated under the laws of Delaware
("PFPC Trust"), and GAM AVALON MULTI-EUROPE, L.P. a Delaware limited
partnership (the "Partnership").
W I T N E S S E T H:
WHEREAS, the Partnership 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 Partnership wishes to retain PFPC Trust to provide custodian
services, and PFPC Trust wishes to furnish custodian services, either directly
or through an affiliate or affiliates, as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions. As Used in This Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Partnership and any other
person authorized by the Partnership to give Oral or Written
Instructions on behalf of the Partnership. An Authorized Person's
scope of authority may be limited by setting forth such limitation in
a written document signed by both parties hereto.
(d) "Book-Entry System" means 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.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "Oral Instructions" mean oral instructions received by PFPC Trust from
an Authorized Person or from a person reasonably believed by PFPC
Trust to be an Authorized Person. PFPC Trust may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via electronic mail
as Oral Instructions.
(g) "PFPC Trust" means PFPC Trust Company or a subsidiary or affiliate of
PFPC Trust Company.
(h) "SEC" means the Securities and Exchange Commission.
(i) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(j) "Shares" mean the limited partnership interests of any series or class
of the Partnership.
(k) "Property" means:
(i) any and all securities and other investment items which the
Partnership 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 Partnership;
(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 Partnership,
which are received by PFPC Trust from time to time, from or on
behalf of the Partnership.
(l) "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 identifier in order to gain access. The instructions may be
delivered electronically or by hand, mail, tested telegram, cable,
telex or facsimile sending device.
2. Appointment. The Partnership hereby appoints PFPC Trust to provide
custodian services to the Partnership and PFPC Trust accepts such
appointment and agrees to furnish such services.
3. Delivery of Documents. The Partnership 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 Partnership's directors, approving the appointment
of PFPC Trust or its affiliates to provide services;
(b) a copy of the Partnership's most recent effective registration
statement;
(c) a copy of the Partnership's advisory agreements;
(d) a copy of the distribution/underwriting agreement with respect to each
class of Shares;
(e) a copy of the Partnership's administration agreement;
(f) copies of any distribution and/or partner servicing plans and
agreements made in respect of the Partnership; 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
Partnership 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 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 Partnership or of any vote, resolution or proceeding of the
Partnership's directors or of the Partnership's limited partners,
unless and until PFPC Trust receives Written Instructions to the
contrary.
(c) The Partnership 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. 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 Trust shall incur no
liability to the Partnership in acting upon such Oral Instructions or
Written Instructions provided that PFPC Trust's actions comply with
the other provisions of this Agreement.
6. Right to Receive Advice.
(a) Advice of the Partnership. 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
Partnership.
(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 Partnership, the Partnership's investment adviser or
PFPC Trust, at the option of PFPC Trust), provided such counsel is
selected with reasonable care.
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC Trust
receives from the Partnership, 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 Partnership of
such conflict and, in any event, before taking the action in question.
If PFPC Trust relies on the advice of counsel, PFPC Trust will remain
liable for any action or omission on the part of PFPC Trust which
constitutes wilfull misfeasance, bad faith, gross negligence or
reckless disregard by PFPC Trust of any duties, obligation or
responsibilities set forth in this Agreement.
(d) Protection of PFPC Trust. PFPC Trust shall be protected in any action
it takes or does not take in reliance upon directions or advice or
Oral Instructions or Written Instructions it receives from the
Partnership or from counsel and which PFPC Trust believes, in good
faith, to be consistent with those directions or advice or Oral
Instructions or Written Instructions. Nothing in this section shall be
construed so as to impose an obligation upon PFPC Trust (i) to seek
such directions or advice or Oral Instructions or Written
Instructions, or (ii) to act in accordance with such directions or
advice or Oral Instructions or Written Instructions unless, under the
terms of other provisions of this Agreement, the same is a condition
of PFPC Trust's properly taking or not taking such action. PFPC Trust
will remain liable for any action or omission on the part of PFPC
Trust which constitutes wilful misfeasance, bad faith, gross
negligence or reckless disregard by PFPC Trust of any duties,
obligation or responsibilities set forth in this Agreement.
7. Records; Visits.
The books and records pertaining to the Partnership, which are in the
possession or under the control of PFPC Trust, shall be the property of the
Partnership. Such books and records shall be prepared and maintained as
required by the 1940 Act and other applicable securities laws, rules and
regulations. The Partnership 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 Partnership, copies of any such
books and records shall be provided by PFPC Trust to the Partnership or to
an authorized representative of the Partnership, at the Partnership'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, and not generally known to the public,
including, but not limited to, information about product plans, marketing
strategies, finances, operations, customer relationships, non-public
information of limited partners, customer lists, sales estimates, business
plans, and internal performance results relating to the past, present or
future business activities of the Partnership 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
Partnership 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, except for non-public personal information
of any Partnership limited partner, 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; (b) is or becomes publicly
known or available through no wrongful act of the receiving party; (c) is
released by the protected party to a third party without restriction; (d)
is required to be disclosed by the receiving party pursuant to a
requirement of a court order, subpoena, 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); (e) is
relevant to the defense of any claim or cause of action asserted against
the receiving party; or (f) has been or is independently developed or
obtained by the receiving party.
9. Cooperation with Accountants. PFPC Trust shall cooperate with the
Partnership's independent public accountants and shall take all reasonable
action to make any requested information available to such accountants as
reasonably requested by the Partnership.
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 utilized by PFPC Trust in
connection with the services provided by PFPC Trust to the Partnership.
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 to the
extent appropriate equipment is available. In the event of equipment
failures, PFPC Trust shall, at no additional expense to the Partnership,
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 the term of this Agreement, the Partnership will pay to PFPC Trust a
fee or fees as may be agreed to in writing from time to time by the
Partnership and PFPC Trust. The Partnership acknowledges that PFPC Trust
may receive float benefits in connection with
maintaining certain accounts required to provide services under this
Agreement.
13. Indemnification. The Partnership agrees to indemnify and hold harmless PFPC
Trust and its affiliates from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation, attorneys' fees and
disbursements and liabilities arising under the Securities Laws and any
state and foreign securities and blue sky laws) arising directly or
indirectly from any action or omission to act which PFPC Trust takes in
connection with the provision of services to the Partnership. Neither PFPC
Trust, nor any of its affiliates, shall be indemnified against any
liability (or any expenses incident to such liability) caused by PFPC
Trust's or its affiliates' own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties and obligations under this
Agreement. Notwithstanding anything in this Agreement to the contrary, the
Partnership shall not be liable to PFPC Trust or its affiliates for any
consequential, special or indirect losses or damages which PFPC Trust or
its affiliates may incur or suffer, whether or not the likelihood of such
losses or damages was known by the Partnership.
14. Responsibility of PFPC Trust.
(a) PFPC Trust shall be under no duty to take any action hereunder on
behalf of the Partnership except as specifically set forth herein or
as may be specifically agreed to by PFPC Trust and the Partnership 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) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC Trust shall not be liable for
losses beyond its control, including without limitation (subject to
Section 11), delays or errors or loss of data occurring by reason of
circumstances beyond PFPC Trust's control, provided that PFPC Trust
has acted in accordance with the standard set forth in Section 14(a)
above; 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
or authority or lack thereof of any Oral Instruction or Written
Instruction, notice or other instrument which PFPC Trust reasonably
believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, neither
PFPC Trust nor its affiliates shall be liable for any consequential,
special or indirect losses or damages, whether or not the likelihood
of such losses or damages was known by PFPC Trust or its affiliates.
(d) No party may assert a cause of action against PFPC Trust or any of its
affiliates that is discovered (or in the exercise of reasonable care
should have been discovered) more than 12 months immediately prior to
the filing of the suit (or, if applicable, commencement of arbitration
proceedings) alleging such cause of action; provided that this Section
14 (d) will not extend the time for asserting a cause of action
against PFPC or any of its affiliates which is applicable under any
applicable statute of limitations.
(e) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
15. Description of Services.
(a) Delivery of the Property. The Partnership will deliver or arrange for
delivery to PFPC Trust, all the Property owned by the Partnership,
including cash received as a result of the distribution of Shares,
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
Partnership's name using all cash received from or for the account of
the Partnership, subject to the terms of this Agreement. In addition,
upon Written Instructions, PFPC Trust shall open separate custodial
accounts for the Partnership (collectively, the "Accounts") and shall
hold in the Accounts all cash received from or for the Accounts of the
Partnership specifically designated to the Partnership. PFPC Trust
shall make cash payments from or for the Accounts of a Partnership
only for:
(i) purchases of securities in the name of the Partnership, 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 Shares of the Partnership 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
Partnership;
(iv) payment to, subject to receipt of Written Instructions, the
Partnership's transfer agent, as agent for the limited partners,
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 limited partners, or, in lieu of paying the
Partnership's transfer agent, PFPC Trust may arrange for the
direct payment of cash dividends and distributions to limited
partners in
accordance with procedures mutually agreed upon from time to time
by and among the Partnership, PFPC Trust and the Partnership'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 Partnership 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 Partnership 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 Partnership's
directors, or any officer, employee or agent of the Partnership
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 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 Partnership (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 Partnership (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
Partnership 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 Partnership 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 Partnership as owner of any securities may be exercised;
(iii)deliver any securities to the issuer thereof, or its agent, when
such securities are called, redeemed, retired or otherwise become
payable at the option of the holder; provided that, in any such
case, the cash or other consideration is to be delivered to PFPC
Trust;
(iv) deliver any securities held for the Partnership 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 Partnership 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 Partnership
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
Partnership;
(vii)release securities belonging to the Partnership to any bank or
trust company for the purpose of a pledge or hypothecation to
secure any loan incurred by the Partnership; 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 Partnership in
connection with any repurchase agreement entered into on behalf
of the Partnership, but only on receipt of payment therefor; and
pay out moneys of the Partnership in connection with such
repurchase agreements, but only upon the delivery of the
securities;
(ix) release and deliver or exchange securities owned by the
Partnership in connection with any conversion of such securities,
pursuant to their terms, into other securities;
(x) release and deliver securities to a broker in connection with the
broker's custody of margin collateral relating to futures and
options transactions;
(xi) release and deliver securities owned by the Partnership for the
purpose of redeeming in kind shares of the Partnership upon
delivery thereof to PFPC Trust; and
(xii)release and deliver or exchange securities owned by the
Partnership 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).
(d) 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 Partnership 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
Partnership, 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 Partnership 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 Partnership.
(ii) Assets of the Partnership 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 Partnership with such reports on its
own system of internal control as the Partnership may reasonably
request from time to time.
(f) Registration of Securities. All Securities held for the Partnership
which are issued or issuable only in bearer form, except such
securities held in the Book-Entry System, shall be held by PFPC Trust
in bearer form; all other securities held for the Partnership may be
registered in the name of the Partnership on behalf of that
Partnership, PFPC Trust, the Book-Entry System, a sub-custodian, or
any duly appointed nominee of the Partnership, PFPC Trust, Book-Entry
System or sub-custodian. The Partnership reserves the right to
instruct PFPC Trust as to the method of registration and safekeeping
of the securities of the Partnership. The Partnership 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 Partnership.
(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 Partnership, 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 Partnership, 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 Partnership, all
income, dividends, distributions, coupons, option premiums,
other payments and similar items, included or to be included
in the Property, and, in addition, promptly advise the
Partnership of such receipt and credit such income, as
collected, to the Partnership's custodian account;
(B) endorse and deposit for collection, in the name of the
Partnership, checks, drafts, or other orders for the payment
of money;
(C) receive and hold for the account of the Partnership all
securities received as a distribution on the Partnership'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 Partnership and held by PFPC Trust hereunder;
(D) present for payment and collect the amount payable upon all
securities which 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 Partnership 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
Partnership on behalf of the Partnership or PFPC Trust
or a sub-custodian or a nominee of one of the
foregoing, or for exchange of securities for a
different number of bonds, certificates, or other
evidence, representing the same aggregate face amount
or number of units bearing the same interest rate,
maturity date and call provisions, if any; provided
that, in any such case, the new securities are to be
delivered to PFPC Trust.
(B) unless and until PFPC Trust receives Oral Instructions or
Written Instructions to the contrary, PFPC Trust shall:
(1) pay all income items held by it which call for payment
upon presentation and hold the cash received by it upon
such payment for the account of the Partnership;
(2) collect interest and cash dividends received, with
notice to the Partnership, to the account of the
Partnership;
(3) hold for the account of the Partnership 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 Partnership 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
Partnership'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 Partnership. 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 Partnership 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 limited partners holding Shares
through ▇▇▇ accounts, in accordance with the Partnership'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 Partnership, PFPC Trust and the
Partnership'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 Partnership pay out of
the moneys held for the account of the Partnership 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 Partnership upon such sale;
(vi) the name of the broker through whom or the person to whom
the sale was made; and
(vi) the location to which the security must be delivered and
delivery deadline, if any.
PFPC Trust shall deliver the securities upon receipt of the total
amount payable to the Partnership 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 shall
be 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 Partnership the following
reports:
(A) such periodic and special reports as the Partnership
may reasonably request;
(B) a monthly statement summarizing all transactions and
entries for the account of the Partnership, listing
each portfolio security belonging to the Partnership
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 Partnership including
disbursements;
(C) the reports required to be furnished to the Partnership
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 Partnership and PFPC Trust.
(ii) PFPC Trust shall transmit promptly to the Partnership 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 Partnership as to such
actions or events.
(m) Crediting of Accounts. If PFPC Trust in its sole discretion
credits an Account with respect to (a) income, dividends,
distributions, coupons, option premiums, other 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 Partnership. 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 Partnership 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 Partnership. If payment is not received by
PFPC Trust within a reasonable time after proper demands have
been made, PFPC Trust shall notify the Partnership in writing,
including copies of all demand letters, any written responses and
memoranda of all oral responses and shall await instructions from
the Partnership. 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 Partnership as
soon as reasonably practicable whenever income due on securities
is not collected in due course and shall provide the Partnership
with periodic status reports of such income collected after a
reasonable time.
16. Duration and Termination. This Agreement shall be effective on the date
first written above and shall continue for a period of two (2) years from
such date, and thereafter shall automatically continue for successive
annual periods, provided that this Agreement may be terminated by either
party effective on any anniversary of the date first written above (other
than the first anniversary) by providing at least sixty (60) days' prior
written notice. Notwithstanding the above, the Partnership may terminate
this Agreement upon a material breach by PFPC Trust, provided, however,
that in the event of such breach, the Partnership must first notify PFPC
Trust of such breach and its intention to terminate and allow PFPC Trust 30
days from receipt of notice of a material breach to cure such breach. The
Partnership may not terminate for material breach if PFPC Trust cures such
breach within the 30 day period. In the event this Agreement is terminated
(pending appointment of a successor to PFPC Trust or vote of the limited
partners of the Partnership 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 Partnership to the Partnership.
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 Partnership 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 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. Notices shall be addressed (a) if to PFPC Trust at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇; (b) if to the Partnership, 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 telegram, cable, telex or
facsimile sending device, it shall be deemed to have been given
immediately. If notice is sent by first-class mail, it shall be deemed to
have been given five days after it has been mailed. If notice is sent by
messenger, it shall be deemed to have been given on the day it is
delivered.
18. Amendments. This Agreement, or any term hereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
19. Delegation; Assignment. 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 (i) PFPC Trust gives the Partnership 30
days' prior written notice of such assignment or delegation and (ii) PFPC
Trust and such delegate (or assignee) provide such information as the Fund
may reasonably request.
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 Representations or Warranties. Except as expressly provided in this
Agreement, PFPC Trust hereby disclaims all representations and
warranties, express or implied, made to the Partnership or any other
person, including, without limitation, any warranties regarding
quality, suitability, merchantability, fitness for a particular
purpose or otherwise (irrespective of any course of dealing, custom or
usage of trade), of any services or any goods provided incidental to
services provided under this Agreement. PFPC Trust disclaims any
warranty of title or non-infringement except as otherwise set forth in
this Agreement.
(c) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Partnership agrees not
to make any modifications to its registration statement or adopt any
policies which would affect materially the obligations or
responsibilities of PFPC Trust hereunder without the prior written
approval of PFPC Trust, which approval shall not be unreasonably
withheld or delayed.
(d) Captions. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(e) Governing Law. This Agreement shall be deemed to be a contract made in
Delaware and governed by Delaware law, without regard to principles of
conflicts of law.
(f) Partial Invalidity. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(g) Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(h) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
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: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President
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GAM AVALON MULTI-EUROPE, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Title: Vice President and Treasurer of
GAM Avalon Multi-Europe, L.P.
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