FORM OF CUSTODIAN SERVICES AGREEMENT
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THIS AGREEMENT is made as of , 2002 by and between PFPC
TRUST COMPANY, a limited purpose trust company incorporated under
the laws of Delaware ("PFPC Trust"), and TORREY INTERNATIONAL
STRATEGY PARTNERS, 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:
(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 Fund and
any other person authorized by the Fund to give Oral or
Written Instructions on behalf of the Fund. 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) "Board of Managers" and "Members" shall have the same
meanings as set forth in the Fund's limited liability
company agreement (the "Limited Liability Company
Agreement").
(e) "Book-Entry System" means Federal Reserve Treasury
book-entry system for United States and federal agency
securities, its successor or successors, and its
nominee or nominees and any book-entry system
maintained by an exchange registered with the SEC under
the 1934 Act.
(f) "CEA" means the Commodities Exchange Act, as amended.
(g) "Oral Instructions" mean oral instructions received by
PFPC Trust from an Authorized Person or from a person
reasonably believed by PFPC Trust to be an Authorized
Person.
(h) "PFPC Trust" means PFPC Trust Company or a subsidiary
or affiliate of PFPC Trust Company.
(i) "SEC" means the Securities and Exchange Commission.
(j) "Securities Laws" mean the 1933 Act, the 1934 Act, the
1940 Act and the CEA.
(k) "Interests" mean the shares of beneficial interest of
any series or class of the Fund.
(l) "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.
(n) "Written Instructions" mean (i) written instructions
signed by two Authorized Persons and received by PFPC
Trust; (ii) sent via e-mail by an Authorized Person and
received and opened by PFPC Trust; or (iii) trade
instructions transmitted by means of an electronic
transaction reporting system which requires the use of
a password or other authorized identifier in order to
gain access. The instructions may be delivered
electronically or by hand, mail or facsimile sending
device.
2. Appointment. The 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 Board of
Managers, 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 advisory agreements;
(d) a copy of the Fund's administration agreement; and
(e) certified or authenticated copies of any and all
amendments or supplements to the foregoing.
4. Compliance with Laws.
PFPC Trust undertakes to comply with material applicable
requirements of the Securities Laws and material laws, rules
and regulations of governmental authorities having
jurisdiction with respect to the duties to be performed by
PFPC Trust hereunder. Except as specifically set forth
herein, PFPC Trust assumes no responsibility for such
compliance by the Fund or any other entity.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC Trust
shall act only upon Oral Instructions or Written
Instructions.
(b) PFPC Trust shall be entitled to rely upon any Oral
Instruction or Written Instruction it receives from an
Authorized Person (or from a person reasonably believed
by PFPC Trust to be an Authorized Person) pursuant to
this Agreement. PFPC Trust may assume that any Oral
Instructions or Written Instructions received hereunder
are not in any way inconsistent with the provisions of
organizational documents of the Fund or of any vote,
resolution or proceeding of the Fund's Board of
Managers 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 (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.
6. Right to Receive Advice.
(a) Advice of the Fund. If PFPC Trust is in doubt as to any
action it should or should not take, PFPC Trust may
request directions or advice, including Oral
Instructions or Written Instructions, from the Fund.
(b) Advice of Counsel. If PFPC Trust shall be in doubt as
to any question of law pertaining to any action it
should or should not take, PFPC Trust may request
advice from counsel of its own choosing (who may be
counsel for the Fund, the Fund's investment adviser or
PFPC Trust, at the option of PFPC Trust).
(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.
(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
believes, in good faith, to be consistent with those
directions or advice or Oral Instructions or Written
Instructions; provided however, that such actions or
omissions of PFPC Trust do not constitute willful
misfeasance, bad faith, gross negligence or reckless
disregard its duties under this in this Agreement..
Nothing in this section shall be construed so as to
impose an obligation upon PFPC Trust (i) to seek such
directions or advice or Oral Instructions or Written
Instructions, or (ii) to act in accordance with such
directions or advice or Oral Instructions or Written
Instructions.
7. Records; Visits. The books and records pertaining to the
Fund, 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
representative of the Fund, at the Fund's expense.
8. Confidentiality. Each party shall keep confidential any
information relating to the other party's business
("Confidential Information"). Confidential Information shall
include (a) any data or information that is competitively
sensitive material, 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: (a) it is
already known to the receiving party at the time it is
obtained; (b) it is or becomes publicly known or available
through no wrongful act of the receiving party; (c) it is
rightfully received from a third party who, to the best of
the receiving party's knowledge, is not under a duty of
confidentiality; (d) it is released by the protected party
to a third party without restriction; (e) it is 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); (f) release of such
information by PFPC Trust is necessary or desirable in
connection with the provision of services under this
Agreement; (g) it is relevant to the defense of any claim or
cause of action asserted against the receiving party; or (h)
has been or is independently developed or obtained by the
receiving party.
9. Cooperation with Accountants. PFPC Trust shall cooperate
with the Fund's independent public accountants and shall
take all reasonable action to make any requested information
available to such accountants as reasonably requested by the
Fund.
10. PFPC System. PFPC Trust shall retain title to and ownership
of any and all data bases, computer programs, screen
formats, report formats, interactive design techniques,
derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents,
copyrights, trade secrets, and other related legal rights
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 to the extent
appropriate equipment is available. 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 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, defend and
hold harmless PFPC Trust and its affiliates, including their
respective officers, directors, agents and employees from
all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, attorneys' fees
and disbursements and liabilities arising under the
Securities Laws and any state and foreign securities and
blue sky laws) arising directly or indirectly from any
action or omission to act which PFPC Trust takes in
connection with the provision of services to the Fund.
Neither PFPC Trust, nor any of its affiliates, shall be
indemnified against any liability (or any expenses incident
to such liability) caused by PFPC Trust's or its affiliates'
own willful misfeasance, bad faith, gross negligence or
reckless disregard in the performance of PFPC Trust's
activities under this Agreement. The provisions of this
Section 13 shall survive termination of this Agreement.
14. Responsibility of PFPC Trust.
(a) PFPC Trust shall be under no duty to take any action
hereunder on behalf of the Fund except as specifically
set forth herein or as may be specifically agreed to by
PFPC Trust 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 which 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 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 fees received by PFPC Trust for services
provided hereunder during the 60 months immediately
prior to the date of such loss or damage.
(d) No party may assert a cause of action against PFPC
Trust or any of its affiliates more than 12 months
after the date of the audit opinion of the Fund for the
financial year during which such cause of action arose.
(e) Each party shall have a duty to mitigate damages for
which the other party may become responsible.
(f) Notwithstanding anything in this Agreement to the
contrary (other than as specifically provided in
Section 15(h)(ii)(B)(4) and Section 15(h)(iii)(A) of
this Agreement), the Fund shall be responsible for all
filings, tax returns and reports on any transaction
undertaken pursuant to this Agreement, or in respect of
the Property or any collections undertaken pursuant to
this Agreement, which may be requested by any relevant
authority. In addition, the Fund shall be responsible
for the payment of all taxes and similar items
(including without limitations penalties and interest
related thereto).
(g) 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 of all the Property
owned by the Fund 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 (each an "Account") 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 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) repurchase of Interests pursuant to Written
Instructions;
(iii)payment of, subject to Written Instructions,
interest, taxes (provided that tax which PFPC
Trust considers is requested to be deducted or
withheld "at source" will be governed by Section
15(h)(iii)(B) of this Agreement), administration,
accounting, advisory and management fees 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 to PFPC Trust for its services
hereunder;
(viii)payments to a sub-custodian pursuant to provisions
in sub-section (c) of this Section; and
(ix) other payments, upon Written Instructions.
PFPC Trust is hereby authorized to endorse and collect all
checks, drafts or other orders for the payment of money
received as custodian for the Accounts.
(c) Receipt of Securities; Subcustodians.
(i) PFPC Trust shall hold all securities received by
it for the Accounts in a separate account that
physically segregates such securities from those
of any other persons, firms or corporations,
except for securities held in a Book-Entry System
or through a sub-custodian or depository. All such
securities shall be held or disposed of only upon
Written Instructions of the Fund pursuant to the
terms of this Agreement. PFPC Trust shall have no
power or authority to assign, hypothecate, pledge
or otherwise dispose of any such securities or
investment, except upon the express terms of this
Agreement or upon Written Instructions authorizing
the transaction. In no case may any member of the
Fund's Board of Managers, or any officer, employee
or agent of the Fund withdraw any securities.
At PFPC Trust's own expense and for its own
convenience, PFPC Trust may enter into
sub-custodian agreements with other banks or trust
companies to perform duties described in this
sub-section (c) with respect to domestic assets.
Such bank or trust company shall have an aggregate
capital, surplus and undivided profits, according
to its last published report, of at least one
million dollars ($1,000,000), if it is a
subsidiary or affiliate of PFPC Trust, or at least
twenty million dollars ($20,000,000) if such bank
or trust company is not a subsidiary or affiliate
of PFPC Trust. In addition, such bank or trust
company must be qualified to act as custodian and
agree to comply with the relevant provisions of
applicable rules and regulations. Any such
arrangement will not be entered into without prior
written notice to the Fund (or as otherwise
provided in the 1940 Act).
In addition, PFPC Trust may enter into
arrangements with sub-custodians with respect to
services regarding foreign assets. Any such
arrangement will not be entered into without prior
written notice to the Fund (or as otherwise
provided in the 1940 Act).
PFPC Trust shall remain responsible for the acts
and omissions of any sub-custodian chosen by PFPC
Trust under the terms of this sub-section (c) to
the same extent that PFPC Trust is responsible for
its own acts and omissions.
(d) Transactions Requiring Instructions. Upon receipt of
Oral Instructions or Written Instructions and not
otherwise, PFPC Trust shall:
(i) deliver any securities held for the Fund against
the receipt of payment for the sale of such
securities or otherwise in accordance with
standard market practice;
(ii) execute and deliver to such persons as may be
designated in such Oral Instructions or Written
Instructions, proxies, consents, authorizations,
and any other instruments whereby the authority of
the Fund 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 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 monies of
the Fund in connection with such repurchase
agreements, but only upon the delivery of the
securities;
(ix) release and deliver or exchange securities owned
by 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;
(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 or Other Depository. PFPC
Trust is authorized and instructed, on a continuous
basis, to deposit in Book-Entry Systems and other
depositories all securities belonging to the Fund
eligible for deposit therein and to utilize Book-Entry
Systems and other depositories to the extent possible
in connection with settlements of purchases and sales
of securities by the 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 a Book-Entry System or other
depository as follows:
(i) With respect to securities of the Fund which are
maintained in a Book-Entry System or another
depository, the records of PFPC Trust shall
identify by book-entry or otherwise those
securities belonging to the Fund.
(ii) Assets of the Fund deposited in a Book-Entry
System or another depository will (to the extent
consistent with applicable law and standard
practice) at all times be segregated from any
assets and cash controlled by PFPC Trust in other
than a fiduciary or custodian capacity but may be
commingled with other assets held in such
capacities.
PFPC Trust will provide the Fund with such reports on
its own system of internal control as the Fund may
reasonably request from time to time.
(f) Registration of Securities. All Securities held for the
Fund which are issued or issuable only in bearer form,
except such securities held in the Book-Entry System or
in another depository, shall be held by PFPC Trust in
bearer form; all other securities held for the Fund may
be registered in the name of the Fund, PFPC Trust,
Book-Entry System, another depository, 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.
(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 another entity,
shall execute in blank and promptly deliver all
notices, proxies and proxy soliciting materials
received by PFPC Trust as custodian of the Property to
the registered holder of such securities. If the
registered holder is not the Fund, 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, 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 which may mature
or be called, redeemed, retired or otherwise
become payable (on a mandatory basis) on the
date such securities become payable; and
(E) take any action which may be necessary and
proper in connection with the collection and
receipt of such income and other payments and
the endorsement for collection of checks,
drafts, and other negotiable instruments.
(ii) Miscellaneous Transactions.
(A) PFPC Trust is authorized to deliver or cause
to be delivered Property against payment or
other consideration or written receipt
therefor in the following cases:
(1) for examination by a broker or dealer
selling for the account of 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 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) subject to receipt of such documentation
and information as PFPC Trust may
request, execute as agent on behalf of
the Fund all necessary ownership
certificates required by a national
governmental taxing authority or under
the laws of any U.S. state now or
hereafter in effect, inserting the
Fund's name on such certificate as the
owner of the securities covered thereby,
to the extent it may lawfully do so.
(iii) Other Matters.
(A) subject to receipt of such documentation and
information as PFPC Trust may request, PFPC
Trust will, in such jurisdictions as PFPC
Trust may agree from time to time, seek to
reclaim or obtain a reduction with respect to
any withholdings or other taxes relating to
assets maintained hereunder (provided that
PFPC Trust will not be liable for failure to
obtain any particular relief in a particular
jurisdiction); and
(B) PFPC Trust is authorized to deduct or
withhold any sum in respect of tax which PFPC
Trust considers is required to be deducted or
withheld "at source" by any relevant law or
practice.
(i) Segregated Accounts.
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 a Book-Entry System or other
depository:
(A) for the purposes of compliance by the Fund
with the procedures required by a securities
or option exchange, providing such procedures
comply with the 1940 Act and any releases of
the SEC relating to the maintenance of
segregated accounts by registered closed-end
management investment companies; and
(B) upon receipt of Written Instructions, for
other purposes.
(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 Interests 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 (or otherwise in accordance with
standard market practice) pay out of the monies
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.
Should the Fund desire to purchase securities that will be
maintained with the issuer of or the transfer agent for such
securities, than the Fund shall (a) execute a document
substantially in the form of Exhibit B "Redemptions and
Changes of Title" (the "Redemption Form"), (b) cause the
issuer or transfer agent, as appropriate, to execute such
Redemption Form, and (c) deliver such Redemption Form to
PFPC Trust for full execution prior to purchasing such
securities. The Fund shall indemnify, defend and hold PFPC
Trust harmless from, and PFPC Trust shall have no liability
for, any failure by the Fund or any issuer or transfer agent
to comply with the foregoing sentence or the terms of any
such Redemption Form.
(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 Interests 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.
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 standard
industry practice and may deliver securities and arrange for
payment in accordance with the customs prevailing among
dealers in securities.
(l) Reports; Proxy Materials.
(i) PFPC Trust shall furnish to the Fund the following
reports:
(A) such periodic and special reports as the Fund
may reasonably request;
(B) a monthly statement summarizing all
transactions and entries for the account of
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.
(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 charges related thereto) to
such Account.
(n) Collections. All collections of monies or other
property in respect, or which are to become part, of
the Property (but not the safekeeping thereof upon
receipt by PFPC Trust) shall be at the sole risk of the
Fund. If payment is not received by PFPC Trust within a
reasonable time after proper demands have been made,
PFPC Trust shall notify the Fund in writing, including
copies of all demand letters, any written responses and
memoranda of all oral responses and shall await
instructions from the Fund. PFPC Trust shall not be
obliged to take legal action for collection unless and
until reasonably indemnified to its satisfaction. PFPC
Trust shall also notify the Fund as soon as reasonably
practicable whenever income due on securities is not
collected in due course and shall provide the Fund with
periodic status reports of such income collected after
a reasonable time.
(o) Foreign Exchange. PFPC Trust and/or sub-custodians may
enter into or arrange foreign exchange transactions (at
such rates as they may consider appropriate) in order
to facilitate transactions under this Agreement, and
such entities and/or their affiliates may receive
compensation in connection with such foreign exchange
transactions.
16. Duration and Termination. This Agreement shall be effective
as of date first set forth above and shall continue for a
period of one (1) year thereafter (the "Initial Term"). Upon
the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of two (2) years
("Renewal Terms"). Either party may terminate the Agreement
effective at the end of the Initial Term or any Renewal Term
by providing written notice to the other of its intent not
to renew. Such notice must be received not less than ninety
(90) days prior to the expiration of the Initial Term or the
then current Renewal Term. 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), 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 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
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 to any affiliate of PFPC Trust
or of The PNC Financial Services Group, Inc., provided that
PFPC Trust gives the Fund 30 days' prior written notice of
such assignment or delegation.
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. 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 Fund 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 Fund 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:
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Name:
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Title:
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TORREY INTERNATIONAL STRATEGY PARTNERS, LLC
By:
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Name:
------------------------------------
Title:
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EXHIBIT A
AUTHORIZED PERSONS LIST
Exhibit A dated as of ______________, 2002 to the Custodian
Services Agreement made as of , 2002 by and between PFPC TRUST
COMPANY And TORREY INTERNATIONAL STRATEGY PARTNERS, LLC.
Authorized Persons
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EXHIBIT B
REDEMPTIONS AND CHANGES OF TITLES
In consideration of the purchase by Torrey International
Strategy Partners, LLC (the "Purchaser") of interests in
________________________ (the "Issuer"), and other good and
valuable consideration the receipt and sufficiency of which is
hereby confirmed, the Purchaser and the Issuer hereby agree that
(i) any redemption by the Purchaser of any interests in the
Issuer and any other disbursement of funds by the Issuer to the
Purchaser shall be wired by the Issuer solely to the Purchaser's
custodian account at PFPC Trust Company, the Purchaser's
custodian (account number ____________) and (ii) any change in
title of any interests of the Issuer that are owned by the
Purchaser shall be effected only upon receipt by the Issuer of
written instructions signed by two authorized personnel of PFPC
Trust Company.
The Current authorized personnel of PFPC Trust Company for
purposes of this document are set forth below, and PFPC Trust
Company may from time to time revise the list of authorized
personnel by written notice to the Issuer (such notice to be
signed by two authorized personnel of PFPC Trust Company).
Any revision to this document (other than changes made by PFPC
Trust Company to the list of authorized personnel as permitted
above) shall require execution by the Purchaser, the Issuer and
PFPC Trust Company.
Torrey International Strategy Partners, LLC (Purchaser) _________
(Issuer)
By: By:
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Name: Name:
------------------------- ------------------------------
Title: Title:
------------------------ ------------------------------
Date: Date:
------------------------- ------------------------------
Address:
----------------------
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PFPC Trust Company
By:
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Name:
-------------------------
Title:
------------------------
Date:
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Authorized Personnel of PFPC Trust Company
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80350.0024 #335348