Form of Agreement
For Discussion Purposes Only
CUSTODIAN SERVICES AGREEMENT
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THIS AGREEMENT is made as of _________, 2001 by and between PFPC TRUST COMPANY, a limited purpose trust
company incorporated under the laws of Delaware ("PFPC Trust"), and ______________________, L.P., a [Delaware]
limited partnership (the "Partnership").
W I T N E S S E T H:
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:
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(a) "Authorized Person" means any officer of the Partnership and any other person authorized by the
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Partnership's General Partner 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.
(b) "Book-Entry System" means Federal Reserve Treasury book-entry system for United States and federal
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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 Securities Exchange Act of
1934.
(c) "Change of Control" means a change in ownership or control (not including transactions between
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wholly-owned direct or indirect subsidiaries of a common parent) of 25% or more of the
beneficial ownership of the shares of common stock or shares of beneficial interest of an
entity or its parent(s).
(d) "General Partner" and "Limited Partners" shall have the same meanings as set forth in the
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Partnership's limited partnership agreement ("Limited Partnership Agreement").
(e) "Oral Instructions" mean oral instructions received by PFPC Trust from an Authorized Person or
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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.
(f) "PFPC Trust" means PFPC Trust Company or a subsidiary or affiliate of PFPC Trust Company.
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(g) "Interests" mean the shares of beneficial interest of any series or class of the Partnership.
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(h) "Property" means:
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(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.
(i) "Written Instructions" mean (i) written instructions signed by two Authorized Persons and
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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
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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
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the following:
(a) at PFPC Trust's request, certified or authenticated copies of the resolutions of the
Partnership's General Partner, approving the appointment of PFPC Trust or its affiliates to
provide services;
(b) a copy of the Partnership's most recent effective offering document and prospectus;
(c) a copy of the Partnership's Limited Partnership Agreement;
(d) a copy of the distribution/underwriting agreement;
(e) a copy of any administration agreement;
(f) copies of any distribution and/or shareholder 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
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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.
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(a) Unless otherwise provided in this Agreement, PFPC Trust shall act only upon Oral Instructions
or Written Instructions.
(b) PFPC Trust shall be entitled to rely upon any Oral Instruction or Written Instruction it
receives from an Authorized Person (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 General Partner 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.
6. Right to Receive Advice.
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(a) Advice of the Partnership. If PFPC Trust is in doubt as to any action it should or should not
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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
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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).
(c) Conflicting Advice. In the event of a conflict between directions or advice or Oral
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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.
(d) Protection of PFPC Trust. PFPC Trust shall be protected and indemnified by the Partnership in
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any action it 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 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.
7. Records; Visits. The books and records pertaining to the Partnership, which are in the possession or
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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 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
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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 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,
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 rightfully received from a third party who, to the best of
the receiving party's knowledge, is not under a duty of confidentiality; (d) is released by the
protected party to a third party without restriction; (e) is required to be disclosed by the receiving
party pursuant to a requirement of a court order, subpoena, governmental or regulatory agency or law
(provided the receiving party will provide the other party written notice of such requirement, to the
extent such notice is permitted); (f) is relevant to the defense of any claim or cause of action
asserted against the receiving party; or (g) has been or is independently developed or obtained by the
receiving party.
9. Cooperation with Accountants. PFPC Trust shall cooperate with the Partnership's independent public
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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
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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
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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
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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
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from all taxes, charges, expenses, assessments, claims and liabilities (including, without limitation,
attorneys' fees and disbursements and liabilities arising under any laws, rules and regulations),
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 in the
performance of PFPC Trust's activities under this Agreement.
14. Responsibility of PFPC Trust.
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(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) 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 Partnership for all losses, claims, suits, controversies,
breaches or damages for any cause whatsoever (including but not limited to those arising out of
or related to this Agreement) and regardless of the form of action or legal theory shall not
exceed the lesser of $100,000 or the fees received by PFPC Trust for services provided
hereunder during the 12 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 that
allegedly occurred more than 12 months immediately prior to the filing of the suit (or, if
applicable, commencement of arbitration proceedings) alleging such cause of action.
(e) Each party shall have a duty to mitigate damages for which the other party may become
responsible.
15. Description of Services.
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(a) Delivery of the Property. The Partnership will deliver or arrange for delivery to PFPC Trust,
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all the Property owned by the Partnership, including cash received as a result of the purchase
of Interests, during the period that is set forth in 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
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and maintain separate accounts (each an "Account") in the Partnership's name using all cash
received from or for the account of the Partnership, 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 Partnership, PFPC Trust or 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 (A) the subscription document, or (B) the
broker's or dealer's confirmation, or (C) payee's invoice, as
appropriate;
(ii) the repurchase of Interests of the Partnership;
(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
administrator, as agent for the Limited Partners, of an amount equal to the amount of
any distributions stated in the Written Instructions to be distributed in cash by the
administrator to Limited Partners, or, in lieu of paying the Partnership's
administrator, 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
administrator.
(v) payments, upon receipt of Written Instructions signed by one Authorized Person, in
connection with the conversion, exchange or surrender of securities owned or
subscribed to by the Partnership and held pursuant to this Agreement or delivered to
PFPC Trust;
(vi) payments of, subject to receipt of Written Instructions signed by one Authorized
Person, 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 Partnership.
(c) Receipt of Securities; Subcustodians.
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(i) PFPC Trust shall hold all securities received by it for the Partnership 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 General Partners, 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 United States banks or trust companies, which are
banks as defined by the 1940 Act, to perform duties described in this sub-section (c)
with respect to domestic assets. Such bank or trust company shall have an aggregate
capital, surplus and undivided profits, according to its last published report, of at
least one million dollars ($1,000,000), if it is a subsidiary or affiliate of PFPC
Trust, or at least twenty million dollars ($20,000,000) if such bank or trust company
is not a subsidiary or affiliate of PFPC Trust. In addition, such bank or trust
company must be qualified to act as custodian and agree to comply with the relevant
provisions of the 1940 Act and other applicable rules and regulations, including but
not limited to, if applicable, standards relating to the custody of foreign
securities. Any such arrangement will not be entered into without prior written
notice to the Partnership.
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.
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 and from 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
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and not otherwise, PFPC Trust, directly or through the use of a 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
received by PFPC Trust as custodian 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; 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 Interests of the Partnership upon delivery thereof to PFPC Trust; and
(xii) release and deliver or exchange securities owned by the Partnership for other purposes.
(e) Use of Book-Entry System. PFPC Trust is authorized and instructed on a continuous basis, to
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deposit in Book-Entry Systems all securities belonging to the Partnership eligible for deposit
therein and to utilize Book-Entry Systems 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
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issuable only in bearer form, except such securities held in the Book-Entry System, shall be
held by PFPC Trust in bearer form; all other securities held for the Partnership may be
registered in the name of the Partnership, PFPC Trust, a Book-Entry System, a sub-custodian, or
any duly appointed nominees 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
Partnership 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
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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 a Book-Entry System,
shall execute in blank and promptly deliver all notices, proxies and proxy soliciting materials
received by PFPC Trust as custodian 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
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Trust is authorized to take the following actions:
(i) Collection of Income and Other Payments.
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(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 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.
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(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 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, for 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.
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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 a
Book-Entry System:
(A) for the purposes of compliance by the Partnership with the procedures required
by a securities, futures 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.
(j) Purchases of Securities. PFPC Trust shall settle purchased securities upon receipt of Oral
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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 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
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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 Partnership 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 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 hereof, PFPC Trust may accept payment in
such form which is consistent with industry practice and may deliver securities and arrange for payment
in accordance with the customs prevailing among dealers in securities.
(l) Reports; Proxy Materials.
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(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, other corporate action 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
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(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 hereunder in the amount necessary to secure the return and payment to PFPC
Trust of any advance or credit made by PFPC Trust (including reasonable charges related
thereto).
(n) Collections. All collections of monies or other property in respect, or which are to become
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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 continue until terminated by the Partnership or PFPC
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Trust on sixty (60) days' prior written notice to the other party. 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. Change of Control. Notwithstanding any other provision of this Agreement, in the event of an agreement
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to enter into a transaction that would result in a Change of Control of the Partnership's adviser or
sponsor, the Partnership's ability to terminate the Agreement pursuant to Section 16 will be suspended
from the time of such agreement until two years after the Change of Control.
18. Notices. Notices shall be addressed (a) if to PFPC Trust at 8800 Tinicum Boulevard, 3rd Floor, Suite
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200, Philadelphia, Pennsylvania 19153, Attention: ▇▇▇ ▇▇▇▇▇▇▇▇; (b) if to the Partnership, at
_______________________ 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.
19. Amendments. This Agreement, or any term hereof, may be changed or waived only by a written amendment,
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signed by the party against whom enforcement of such change or waiver is sought.
20. Delegation; Assignment. PFPC Trust may assign its rights and delegate its duties hereunder to any
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affiliate of PFPC Trust or of The PNC Financial Services Group, Inc., provided that PFPC Trust gives the
Partnership 30 days' prior written notice of such assignment or delegation.
21. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed
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an original, but all of which together shall constitute one and the same instrument.
22. Further Actions. Each party agrees to perform such further acts and execute such further documents as
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are necessary to effectuate the purposes hereof.
23. Miscellaneous.
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(a) Entire Agreement. This Agreement embodies the entire agreement and understanding between the parties
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and supersedes all prior agreements and understandings relating to the subject matter hereof,
provided that the parties may embody in one or more separate documents their agreement, if any,
with respect to delegated duties and Oral Instructions.
(b) No Representations or Warranties. Except as expressly provided in this Agreement, PFPC Trust
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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
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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
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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 in the United
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States 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
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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
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the parties hereto and their respective successors and permitted assigns.
(h) Facsimile Signatures. The facsimile signature of any party to this Agreement shall constitute
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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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Title:
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_____________________________, L.P.
By:
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Title:
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