EXHIBIT (J)
CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of _____________, 1999 by and between PFPC
TRUST COMPANY, a limited purpose trust company organized under the laws of
Delaware ("PFPC Trust"), and PW Technology Partners, L.P., a Delaware limited
partnership (the "Partnership").
W I T N E S S E T H:
WHEREAS, the Partnership is registered as a closed-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Partnership wishes to retain PFPC Trust to provide
custodian services, and PFPC Trust wishes to furnish custodian services, either
directly or through an affiliate or affiliates, as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as
amended.
(c) "AUTHORIZED PERSON" means any person duly authorized by the
Partnership's General Partner or Directors to give Oral
Instructions and Written Instructions on behalf of the
Partnership and listed on the Authorized Persons Appendix
attached hereto and made a part hereof, or any amendment
thereto as may be received by PFPC Trust. An Authorized
Person's scope of authority may be limited by the
Partnership by setting forth such limitation in the
Authorized Persons Appendix.
(d) "BOOK-ENTRY SYSTEM" means Federal Reserve Treasury
book-entry system for United States and federal agency
securities, its successor or successors, and its nominee or
nominees and any book-entry system maintained by an exchange
registered with the SEC under the 1934 Act.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "CODE" means the Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder.
(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) "PROPERTY" means:
(i) any and all securities and other investment items which
the Partnership may from time to time deposit, or cause
to be deposited, with PFPC Trust or which PFPC Trust
may from time to time hold for the Partnership;
(ii) all income in respect of any of such securities or
other investment items;
(iii) all proceeds of the sale of any of such securities or
investment items; and
(iv) all proceeds of the sale of securities issued by the
Partnership, which are received by PFPC Trust from time
to time, from or on behalf of the Partnership.
(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) "SHARES" mean the limited partnership interests of the
Partnership.
(l) "SHAREHOLDERS" mean the holders of limited partnership
interests of the partnership.
(m) "WRITTEN INSTRUCTIONS" mean written instructions signed by
two Authorized Persons and received by PFPC Trust. The
instructions may be delivered by hand, mail, tested
telegram, cable, telex or facsimile sending device.
2. APPOINTMENT. The Partnership hereby appoints PFPC Trust to provide
custodian services to the Partnership, on behalf of each of its
investment portfolios (each, a "Portfolio"), and PFPC Trust accepts
such appointment and agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Partnership has provided or, where
applicable, will provide PFPC Trust with the following:
(a) certified or authenticated copies of the resolutions of the
Partnership's General Partner or Directors, approving the
appointment of PFPC Trust or its affiliates to provide
services;
(b) a copy of the Partnership's most recent effective
registration statement;
(c) a copy of each Portfolio's advisory agreements;
(d) a copy of the placement agency agreement with respect to the
of Shares;
(e) a copy of each Portfolio's administration agreement if PFPC
Trust is not providing the Portfolio with such services;
(f) copies of any shareholder servicing agreements made in
respect of the Partnership or a Portfolio; 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 all
applicable requirements of the Securities Laws and any 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 Portfolio.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Trust
shall act only upon Oral Instructions and Written
Instructions.
(b) PFPC Trust shall be entitled to rely upon any Oral
Instructions and Written Instructions 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, Directors
or Shareholders 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 in no
way shall invalidate the transactions or enforceability of
the transactions authorized by the Oral Instructions. Where
Oral Instructions or Written Instructions reasonably appear
to have been received from an Authorized Person, PFPC Trust
shall incur no liability to the Partnership in acting upon
such Oral Instructions or Written Instructions provided that
PFPC Trust's actions comply with the other provisions of
this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE PARTNERSHIP. If PFPC Trust is in doubt as to
any action it should or should not take, PFPC Trust may
request directions or advice, including Oral Instructions or
Written Instructions, from the Partnership.
(b) ADVICE OF COUNSEL. If PFPC Trust shall be in doubt as to any
question of law pertaining to any action it should or should
not take, PFPC Trust may request advice at its own cost from
such 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, advice or Oral Instructions or Written
Instructions PFPC Trust receives from the Partnership, and
the advice it receives from counsel, PFPC Trust shall be
entitled to rely upon and follow the advice of counsel
provided that such counsel is selected with reasonable care.
In the event PFPC Trust so relies on the advice of counsel,
PFPC Trust remains liable for any action or omission on the
part of PFPC Trust which constitutes willful misfeasance,
bad faith, negligence or reckless disregard by PFPC Trust of
any duties, obligations or responsibilities set forth in
this Agreement.
(d) PROTECTION OF PFPC TRUST. PFPC Trust shall be protected in
any action it takes or does not take in reliance upon
directions, advice or Oral Instructions or Written
Instructions it receives from the Partnership or from
counsel and which PFPC Trust believes, in good faith, to be
consistent with those directions, 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, advice or Oral
Instructions or Written Instructions, or (ii) to act in
accordance with such directions, advice or Oral Instructions
or Written Instructions unless, under the terms of other
provisions of this Agreement, the same is a condition of
PFPC Trust's properly taking or not taking such action.
Nothing in this subsection shall excuse PFPC Trust when an
action or omission on the part of PFPC Trust constitutes
willful misfeasance, bad faith, negligence or reckless
disregard by PFPC Trust of any duties, obligations or
responsibilities set forth in this Agree ment.
7. RECORDS; VISITS. The books and records pertaining to the
Partnership and any Portfolio, which are in the possession or under
the control of PFPC Trust, shall be the property of the Partnership.
Such books and records shall be prepared, preserved and maintained as
required by the 1940 Act and other applicable securities laws, rules
and regulations. The Partnership and Authorized Persons shall have
access to such books and records at all times during PFPC Trust's
normal business hours. Upon the reasonable request of the Partnership,
copies of any such books and records shall be provided by PFPC Trust
to the Partnership or to an authorized representative of the
Partnership, at the Partnership's expense.
8. CONFIDENTIALITY. PFPC Trust agrees to keep confidential all records of
the Partnership and information relating to the Partnership, the
Partnership's General Partner and the Shareholders, unless the release
of such records or information is otherwise consented to, in writing,
by the Partnership. The Partnership agrees that such consent shall not
be unreasonably withheld and may not be withheld where PFPC Trust may
be exposed to civil or criminal contempt proceedings or when required
to divulge such information or records to duly constituted
authorities.
9. COOPERATION WITH ACCOUNTANTS. PFPC Trust shall cooperate with the
Partnership's independent public accountants and shall take all
reasonable action in the performance of its obligations under this
Agreement to ensure that the necessary information is made available
to such accountants for the expression of their opinion, as required
by the Partnership.
10. 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 at no additional expense to
the Partnership, shall 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, negligence or reckless disregard of
its duties or obligations under this Agreement.
11. YEAR 2000 READINESS DISCLOSURE. PFPC Trust (a) has reviewed its
business and operations as they relate to the services provided
hereunder, (b) has developed or is developing a program to remediate
or replace computer applications and systems, and (c) has developed a
testing plan to test the remediation or replacement of computer
applications/systems, in each case, to address on a timely basis the
risk that certain computer applications/systems used by PFPC Trust may
be unable to recognize and perform properly date sensitive functions
involving dates prior to, including and after December 31, 1999,
including dates such as February 29, 2000 (the "Year 2000 Challenge").
To the best of PFPC Trust's knowledge and belief, the reasonably
foreseeable consequences of the Year 2000 Challenge will not adversely
effect PFPC Trust's ability to perform its duties and obligations
under this Agreement.
12. COMPENSATION. As compensation for custody services rendered by PFPC
Trust during the term of this Agreement, the Partnership, on behalf of
each of the Portfolios, 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.
13. INDEMNIFICATION. (a) The Partnership, on behalf of each Portfolio,
agrees to indemnify and hold harmless PFPC Trust and its affiliates
from all taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, liabilities arising under the
Securities Laws and any state and foreign securities and blue sky
laws, and amendments thereto) and expenses, including (without
limitation) reasonable attorneys' fees and disbursements,
(collectively, "Losses") arising directly or indirectly from any
action or omission to act which PFPC Trust takes (i) at the request or
on the direction of or in reliance on the advice of the Partnership or
(ii) upon Oral Instructions or Written Instructions. Neither PFPC
Trust, nor any of its affiliates, shall be indemnified against any
liability (or any expenses incident to such liability) arising out of
PFPC Trust's or its affiliates' own willful misfeasance, bad faith,
negligence or reckless disregard of its duties under this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary,
neither the Partnership nor any Portfolio shall be liable to PFPC
Trust or its affiliates for any consequential, special or indirect
losses or damages which PFPC Trust or its affiliates may incur or
suffer, whether or not the likelihood of such losses or damages was
known by the Partnership.
14. RESPONSIBILITY OF PFPC TRUST.
(a) PFPC Trust shall be under no duty to take any action on
behalf of the Partnership or any Portfolio except as
specifically set forth herein or as may be specifically
agreed to by PFPC Trust in writing. PFPC Trust shall be
obligated to exercise care and diligence in the performance
of its duties hereunder, to act in good faith and to use its
best efforts, within reasonable limits, in performing
services provided for under this Agreement. PFPC Trust
agrees to indemnify and hold harmless the Partnership from
Losses 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,
negligence or reckless disregard of its duties under this
Agreement.
(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) PFPC Trust shall not
be under any duty or obligation to inquire into and shall
not be liable for (A) the validity or invalidity or
authority or lack thereof of any Oral Instruction or Written
Instruction, notice or other instrument which conforms to
the applicable requirements of this Agreement, and which
PFPC Trust reasonably believes to be genuine; or (B) subject
to Sections 10 and 11 of this Agreement, delays or errors or
loss of data occurring by reason of circumstances beyond
PFPC Trust's control, including acts of civil or military
authority, national emergencies, fire, flood, catastrophe,
acts of God, insurrection, war, riots or failure of the
mails, transportation, communication or power supply.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC Trust nor its affiliates shall be liable to the
Partnership or to any Portfolio for any consequential,
special or indirect losses or damages which the Partnership
may incur or suffer by or as a consequence of PFPC Trust's
or its affiliates' performance of the services provided
hereunder, whether or not the likelihood of such losses or
damages was known by PFPC Trust or its affiliates.
15. DESCRIPTION OF SERVICES.
(a) DELIVERY OF THE PROPERTY. The Partnership will deliver or
arrange for delivery to PFPC Trust, all of the Property
owned by the Portfolios, including cash received as a result
of the distribution of Shares, 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 and maintain separate
accounts in the Partnership's name using all cash received
from or for the account of the Partnership, subject to the
terms of this Agreement. In addition, upon Written
Instructions, PFPC Trust shall open separate custodial
accounts for each separate Portfolio of the Partnership
(collectively, the "Accounts") and shall hold in the
Accounts all cash received from or for the Accounts of the
Partnership specifically designated to each separate
Portfolio. PFPC Trust shall make cash payments from or for
the Accounts of a Portfolio only for:
(i) purchases of securities in the name of a Portfolio or
PFPC Trust or PFPC Trust's nominee as provided in
sub-section (j) of this Section and for which PFPC
Trust has received a copy of the broker's or dealer's
confirmation or payee's invoice, as appropriate;
(ii) purchase or redemption of Shares delivered to PFPC
Trust;
(iii) payment of, subject to Written Instructions,
interest, taxes, administration, accounting,
distribution, advisory, management fees or similar
expenses which are to be borne by a Portfolio;
(iv) payment to, subject to Written Instructions, the
Shareholders of an amount equal to the amount of
dividends and distributions stated in the Written
Instructions to be distributed in cash.
(v) payments, upon Written Instructions, in connection
with the conversion, exchange or surrender of
securities owned or subscribed to by the Partnership
and held by or delivered to PFPC Trust;
(vi) payments of the amounts of dividends received with
respect to securities sold short;
(vii) payments made to a sub-custodian pursuant to
provisions in sub-section (c) of this Section;
and
(viii) payments, upon Written Instructions, made for other
proper Partnership purposes.
PFPC Trust hereby is authorized to endorse and collect all
checks, drafts or other orders for the payment of money
received as custodian for the Accounts.
(c) RECEIPT OF SECURITIES; SUBCUSTODIANS.
(i) PFPC Trust shall hold all securities received by
it for the Accounts in a separate account that
physically segregates such securities from those
of any other persons, firms or corporations,
except for securities held in a Book-Entry
System. All such securities shall be held or
disposed of only upon Written Instructions of
the Partnership pursuant to the terms of this
Agreement. PFPC Trust shall have no power or
authority to assign, hypothecate, pledge or
otherwise dispose of any such securities or
investment, except upon the express terms of this
Agreement and upon Written Instructions,
accompanied by a certified resolution of the
Partnership's General Partner or Directors,
authorizing the transaction. In no case may any
member of the Partnership's General Partner, 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 to perform duties described in this
sub-section (c). Such bank or trust company shall
have an aggregate capital, surplus and undivided
profits, according to its last published report, of
at least one million dollars ($1,000,000), if it is a
subsidiary or affiliate of PFPC Trust, or at least
twenty million dollars ($20,000,000) if such bank or
trust company is not a subsidiary or affiliate of
PFPC Trust. In addition, such bank or trust company
must be qualified to act as custodian and agree to
comply with the relevant provisions of the 1940 Act
and other applicable rules and regulations. Any such
arrangement will not be entered into without prior
written notice to the Partnership.
PFPC Trust shall remain responsible for the performance of all
of its duties as described in this Agreement and shall hold
the Partnership and each Portfolio harmless from its own acts
or omissions, under the standards of care provided for herein,
or the acts and omissions of any sub-custodian chosen by PFPC
Trust under the terms of this sub-section (c).
(d) TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of Oral
Instructions or Written Instructions and not otherwise, PFPC
Trust, directly or through the use of the Book-Entry System,
shall:
(i) deliver any securities held for a Portfolio against the
receipt of payment for the sale of such securities;
(ii) execute and deliver to such persons as may be
designated in such Oral Instructions or Written
Instructions, proxies, consents, authorizations, and
any other instruments whereby the authority of a
Portfolio 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 a Portfolio against
receipt of other securities or cash issued or paid in
connection with the liquidation, reorganization,
refinancing, tender offer, merger, consolidation or
recapitalization of any corporation, or the exercise of
any conversion privilege;
(v) deliver any securities held for a Portfolio 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 Portfolios 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 a Portfolio to any
bank or trust company for the purpose of a pledge or
hypothecation to secure any loan incurred by the
Partnership on behalf of that Portfolio; 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 a Portfolio
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 owned by the Partnership
for the purpose of redeeming in kind shares of the
Partnership upon delivery thereof to PFPC Trust; and
(xi) release and deliver or exchange securities owned by the
Partnership for other corporate 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 this sub-
section d.
(e) USE OF BOOK-ENTRY SYSTEM. The Partnership shall deliver to PFPC
Trust certified resolutions of the Partnership's General Partner
or Directors approving, authorizing and instructing PFPC Trust on
a continuous basis, to deposit in the Book-Entry System all
securities belonging to the Portfolios eligible for deposit
therein and to utilize the Book-Entry System to the extent
possible in connection with settlements of purchases and sales of
securities by the Portfolios, 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 each Portfolio which are
maintained in the Book-Entry System, the records of
PFPC Trust shall identify by book-entry or otherwise
those securities belonging to each Portfolio. PFPC
Trust shall furnish to the Partnership a detailed
statement of the Property held for each Portfolio under
this Agreement at least monthly and from time to time
and upon written request.
(ii) Securities and any cash of each Portfolio 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 and its sub-custodian, if any, will pay out
money only upon receipt of securities and will deliver
securities only upon the receipt of money.
(iii) All books and records maintained by PFPC Trust which
relate to the Partnership's participation in the
Book-Entry System will be open to the inspection of
Authorized Persons at all times during PFPC Trust's
regular business hours, and PFPC Trust will furnish to
the Partnership all information in respect of the
services rendered as it may require.
PFPC Trust will also 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 a Portfolio
which are issued or issuable only in bearer form, except such
securities held in the Book-Entry System, shall be held by PFPC
Trust in bearer form; all other securities held for a Portfolio
may be registered in the name of the Partnership on behalf of
that Portfolio, PFPC Trust, the 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, any securities
which it may hold for the Accounts and which may be registered
from time to time in the name of the Partnership on behalf of a
Portfolio.
(g) VOTING AND OTHER ACTION. Neither PFPC Trust nor its nominee shall
vote any of the securities held pursuant to this Agreement by or
for the account of a Portfolio, except in accordance with Written
Instructions. PFPC Trust, directly or through the use of the
Book-Entry System, shall execute in blank and promptly deliver
all notices, proxies and proxy soliciting materials to the
registered holder of such securities. If the registered holder is
not the Partnership on behalf of a Portfolio, 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 each
Portfolio, all income, dividends, distributions,
coupons, option premiums, other payments and
similar items, included or to be included in the
Property, and promptly advise each Portfolio of
such receipt and credit such income, as collected,
to each Portfolio'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 each Portfolio
all securities received as a distribution on the
Portfolio'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 a Portfolio 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.
(A) deliver or cause to be delivered Property against
payment or other consideration or written receipt
therefor in the following cases:
(1) for examination by a broker or dealer
selling for the account of a Portfolio
in accordance with street delivery custom;
(2) for the exchange of interim receipts or
temporary securities for definitive
securities; and
(3) for transfer of securities into the
name of the Partnership on behalf of
a Portfolio or PFPC Trust or nominee
of either, 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 each Portfolio;
(2) collect interest and cash dividends
received, with notice to the
Partnership, to the account of each
Portfolio;
(3) hold for the account of each
Portfolio 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 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 behalf of a
Portfolio, on such certificate as
the owner of the securities covered
thereby, to the extent it may
lawfully do so.
(b) SEGREGATED ACCOUNTS.
(i) PFPC Trust upon receipt of Written Instructions or Oral
Instructions, shall establish and maintain segregated
accounts on its records for and on behalf of each Portfolio.
Such accounts may be used to transfer cash and securities,
including securities in the Book-Entry System:
(A) for the purposes of compliance by the Partnership with
the procedures required by a securities or option
exchange, providing such procedures comply with the
1940 Act and any releases of the SEC relating to the
maintenance of segregated accounts by registered
investment companies; and
(B) Upon receipt of Written Instructions, for other proper
corporate purposes.
(ii) PFPC Trust shall arrange for the establishment of ▇▇▇
custodian accounts for such shareholders holding Shares
through ▇▇▇ accounts, in accordance with the Partnership's
confidential memorandum, the Code and such other procedures
as are mutually agreed upon from time to time by and between
the Partnership and PFPC Trust.
(j) PURCHASES OF SECURITIES. PFPC Trust shall settle purchased
securities upon receipt of Oral Instructions or Written
Instructions from the Partnership or its investment advisers that
specify:
(i) the name of the issuer and the title of the securities,
including CUSIP number if applicable;
(ii) the number of shares or the principal amount purchased and
accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase;
(vi) the Portfolio involved; and
(vii) the name of the person from whom or the broker through whom
the purchase was made. PFPC Trust, upon receipt of
securities purchased by or for a Portfolio, shall pay out of
the moneys held for the account of the Portfolio the total
amount payable to the person from whom or the broker through
whom the purchase was made, provided that the same conforms
to the total amount payable as set forth in such Oral
Instructions or Written Instructions.
(k) SALES OF SECURITIES. PFPC Trust shall settle sold securities upon
receipt of Oral Instructions or Written Instructions from the
Partnership that specify:
(i) the name of the issuer and the title of the security,
including CUSIP number if applicable;
(ii) the number of shares or principal amount sold, and accrued
interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Partnership upon such sale;
(vi) the name of the broker through whom or the person to whom
the sale was made;
(vii) the location to which the security must be delivered and
delivery deadline, if any; and
(viii) the Portfolio involved. PFPC Trust shall deliver the
securities upon receipt of the total amount payable to the
Portfolio upon such sale, provided that the total amount
payable is the same as was set forth in the Oral
Instructions or Written Instructions. Subject to the
foregoing, PFPC Trust may accept payment in such form as
shall be satisfactory to it, and may deliver securities and
arrange for payment in accordance with the customs
prevailing among dealers in securities.
(l) REPORTS; PROXY MATERIALS.
(i) PFPC Trust shall furnish to the Partnership the following
reports:
(A) such periodic and special reports as the Partnership
may reasonably request;
(B) a monthly statement summarizing all transactions and
entries for the account of each Portfolio, listing each
Portfolio securities belonging to each Portfolio with
the adjusted average cost of each issue and the market
value at the end of such month and stating the cash
account of each Portfolio including disbursements;
(C) the reports required to be furnished to the Partnership
pursuant to Rule 17f-4 under the 1940 Act; and
(D) such other information as may be agreed upon from time
to time between the Partnership and PFPC Trust.
(ii) PFPC Trust shall transmit promptly to the Partnership any
proxy statement, proxy material, notice of a call or
conversion or similar communication received by it as
custodian of the Property. PFPC Trust shall be under no
other obligation to inform the Partnership as to such
actions or events.
(m) COLLECTIONS. All collections of monies or other property in
respect, or which are to become part, of the Property (but not
the safekeeping thereof upon receipt by PFPC Trust) shall be at
the sole risk of the Partnership. If payment is not received by
PFPC Trust within a reasonable time after proper demands have
been made, PFPC Trust shall notify the Partnership in writing,
including copies of all demand letters, any written responses,
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 also shall 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 by PFPC Trust on ninety (90) 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 shareholders 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
Portfolios 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 such delivery or payment
until full payment shall have been made to PFPC Trust of all of its
fees, compensation, costs and expenses attributable to the relevant
Portfolio(s). PFPC Trust shall have a security interest in and shall
have a right of setoff against the Property of such Portfolio(s) as
security for the payment of such fees, compensation, costs and
expenses.
17. NOTICES. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable,
telex or facsimile sending device. Notice shall be addressed (a) if to
PFPC Trust at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, marked for
the attention of Custodian Services, (b) if to the Partnership, at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ATTN: or (c) if
to neither of the foregoing, at such other address as shall have been
given by like notice to the sender of any such notice or other
communication by the other party. If notice is sent by confirming
telegram, cable, telex or facsimile sending device, it shall be deemed
to have been given immediately. If notice is sent by first-class mail,
it shall be deemed to have been given five days after it has been
mailed. If notice is sent by messenger, it shall be deemed to have
been given on the day it is delivered.
18. AMENDMENTS. This Agreement, or any term hereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
19. DELEGATION; ASSIGNMENT. PFPC Trust may assign its rights and delegate
its duties hereunder to any affiliate (as defined in the ▇▇▇▇ ▇▇▇) of
or any majority-owned direct or indirect subsidiary of PFPC Inc., PFPC
Trust Corp., or PNC Bank Corp. provided that (i) PFPC Trust gives the
Partnership thirty (30) days' prior written; (ii) the delegate (or
assignee) agrees with PFPC Trust and the Partnership to comply with
all relevant provi sions of the Securities Laws; and (iii) PFPC Trust
and such delegate (or assignee) promptly provide such information as
the Partnership may request, and respond to such questions as the
Partnership may ask, relative to the delegation (or assignment),
including (without limitation) the capabilities of the delegate (or
assignee).
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
21. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
22. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties and Oral Instructions.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) 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:
TITLE:
PW TECHNOLOGY PARTNERS, L.P.
BY:
TITLE:
AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE