Exhibit J
CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of April 23, 2007 by and between PFPC TRUST
COMPANY, a limited purpose trust company incorporated under the laws of Delaware
("PFPC Trust"), and EXCELSIOR DIRECTIONAL HEDGE FUND OF FUNDS (TI), LLC, a
Delaware limited liability company (the "Company").
W I T N E S S E T H:
WHEREAS, the Company wishes to retain PFPC Trust to provide custodian
services to the Company 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) "AUTHORIZED PERSON" means any officer of the Company and any other
person authorized by the Company's Board of Managers to give Oral or
Written Instructions on behalf of the Company. 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) "BOARD OF MANAGERS" shall have the same meaning as set forth in the
Company's limited liability company agreement, as may be amended from
time to time ("Limited Liability Company Agreement").
(c) "BOOK-ENTRY SYSTEM" means the 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 registered with the SEC
under the Securities Exchange Act of 1934.
(d) "MEMBERS" shall have the same meaning as set forth in the Limited
Liability Company Agreement.
(e) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC Trust from
an Authorized Person or from a person reasonably believed by PFPC
Trust to be an Authorized Person. PFPC Trust may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via electronic mail
as Oral Instructions.
(f) "PFPC TRUST" means PFPC Trust Company or a subsidiary or affiliate of
PFPC Trust Company.
(g) "INTERESTS" mean the shares of beneficial interest of any series or
class of the Company.
(h) "PROPERTY" means:
(i) any and all securities and other investment items which the
Company 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 Company;
(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 Company,
which are received by PFPC Trust from time to time, from or on
behalf of the Company.
(i) "WRITTEN INSTRUCTIONS" mean (i) written instructions signed by two
Authorized Persons (or persons reasonably believed by PFPC Trust to be
Authorized Persons) and received by PFPC Trust or (ii) trade
instructions transmitted by means of an
electronic transaction reporting system which requires the use of a
password or other authorized identifier in order to gain access. The
instructions may be delivered electronically (with respect to sub-item
(ii) above) or by hand, mail, tested telegram, cable, telex or
facsimile sending device.
2. APPOINTMENT. The Company hereby appoints PFPC Trust to provide custodian
services to the Company as set forth herein and PFPC Trust accepts such
appointment and agrees to furnish such services.
3. COMPLIANCE WITH LAWS. PFPC Trust undertakes to comply with material
applicable requirements of the material laws, rules and regulations of
governmental authorities having jurisdiction with respect to the duties to
be performed by PFPC Trust. Except as specifically set forth herein, PFPC
Trust assumes no responsibility for such compliance by the Company or any
other entity.
4. 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 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 Company or of any vote, resolution or
proceeding of the Company's Board of Managers or of the Company's
Members, unless and until PFPC Trust receives Written Instructions to
the contrary.
(c) The Company 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.
5. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE COMPANY. 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
Company.
(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 Company, the Company'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 Company, 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
Company 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
Company 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.
6. RECORDS; VISITS. The books and records pertaining to the Company, which are
in the possession or under the control of PFPC Trust, shall be the property
of the Company. Such books and records shall be prepared and maintained as
required by the applicable securities laws, rules and regulations. The
Company 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 Company, copies of any such books and records shall be
provided by PFPC Trust to the Company or to an authorized representative of
the Company, at the Company's expense.
7. 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 Company or PFPC Trust, their respective subsidiaries and
affiliated companies; (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 Company 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 Confidential Information and 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 requested or required to be disclosed by the receiving party pursuant
to a court order, subpoena, governmental or regulatory agency request or
law (provided the receiving party will provide the other party written
notice of the same, 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 Company
information provided by PFPC Trust in connection with an independent third
party compliance or other review; (h) it is relevant to the defense of any
claim or cause of action asserted against the receiving party; or (i) it
has been or is independently developed or obtained by the receiving party.
The provisions of this Section 7 shall survive termination of this
Agreement for a period of three (3) years after such termination. PFPC
Trust will not gather, store, or use any Customer Information (as defined
below), and will not disclose, distribute, sell, share, rent or otherwise
transfer any Customer Information to any third party, except (i) as
provided in this Agreement; (ii) as PFPC Trust may be directed in advance
in writing by the Company
or as required in connection with the provision of services under this
Agreement; or (iii) as permitted or required by applicable law. PFPC Trust
represents, covenants, and warrants that PFPC Trust will use Customer
Information only in compliance with: (a) this Agreement; (b) any Company
privacy policies provided to PFPC Trust and accepted by PFPC Trust; and (c)
all applicable laws, policies and regulations (including but not limited to
applicable laws, policies and regulations related to spamming, privacy, and
consumer protection). As soon as PFPC Trust no longer needs to retain such
Customer Information in order to perform its duties under this Agreement,
PFPC Trust will upon request and at the Company's expense, promptly return
or (if so instructed by the Company in writing) destroy all originals and
copies of such Customer Information, except to the extent PFPC Trust is
prohibited by law from doing so. "Customer Information" means all disclosed
"non-public personal information" (as such term is defined by ▇▇▇▇▇▇▇▇▇▇
▇-▇, ▇▇ ▇▇▇ Part 248.11), however collected, including without limitation,
through "cookies", Web bugs or non-electronic means, pertaining to or
identifiable to a "customer", as such term is defined by ▇▇▇▇▇▇▇▇▇▇ ▇-▇, ▇▇
▇▇▇ Part 248.11.
8. COOPERATION WITH ACCOUNTANTS. PFPC Trust shall cooperate with the Company's
independent public accountants and shall take all reasonable action to make
any requested information available to such accountants as reasonably
requested by the Company.
9. 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 Company.
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 shall, at no additional expense to the Company, take
reasonable steps to minimize service interruptions.
11. COMPENSATION.
(a) As compensation for custody services rendered by PFPC Trust during the
term of this Agreement, the Company will pay to PFPC Trust a fee or
fees as may be agreed to in writing from time to time by the Company
and PFPC Trust. The Company acknowledges that PFPC Trust may receive
float benefits in connection with maintaining certain accounts
required to provide services under this Agreement.
(b) The undersigned hereby represents and warrants to PFPC Trust that the
terms of this Agreement, (ii) the fees and expenses associated with
this Agreement, and (iii) any benefits accruing to PFPC Trust or to
the adviser or sponsor to the Company in connection with this
Agreement, including but not limited to any fee waivers, conversion
cost reimbursements, up front payments, signing payments or periodic
payments made or to be made by PFPC Trust to such adviser or sponsor
or any affiliate of the Company relating to this Agreement have been
fully disclosed to the Board of Managers and that, if required by
applicable law, such Board of Managers has approved or will approve
the terms of this Agreement, any such fees and expenses, and any such
benefits.
12. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless PFPC Trust and its
affiliates from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, attorneys' fees and
disbursements and liabilities arising under any laws, rules and
regulations) (Collectively, "Losses"), arising directly or indirectly
from any action or omission to act which PFPC Trust takes in
connection with the provision of services to the Company. 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.
(b) PFPC Trust will indemnify and hold harmless the Company from all
Losses incurred by the Company to the extent (and only to the extent)
that such Losses arise out of PFPC Trust's (i) uncured material breach
of its duties and obligations under this Agreement; (ii) willful
misfeasance; (iii) bad faith; or (iv) gross negligence.
(c) The provisions of this Section 12 shall survive termination of this
Agreement.
13. RESPONSIBILITY OF PFPC TRUST.
(a) PFPC Trust shall be under no duty to take any action hereunder on
behalf of the Company except as specifically set forth herein or as
may be specifically agreed to by PFPC Trust and the Company 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 and only 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 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, neither
PFPC Trust nor its affiliates shall be liable for any consequential,
special or indirect losses or damages whether or not the likelihood of
such losses or damages was known by PFPC Trust or its affiliates.
(d) Notwithstanding anything in this Agreement to the contrary, the
Company and its affiliates shall not be liable for any consequential,
special or indirect losses or damages whether or not the likelihood of
such losses or damages was known by the Company or its affiliates.
(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 14(h)(ii)(B)(4) and Section
14(h)(iii)(A) of this Agreement), the Company shall be responsible for
all filings, tax returns and reports on any transactions 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 Company shall be
responsible for the payment of all taxes and similar items (including
without limitation penalties and interest related thereto).
(g) The provisions of this Section 13 shall survive termination of this
Agreement.
(h) Notwithstanding anything in this Agreement to the contrary, PFPC Trust
shall have no liability either for any error or omission of any of its
predecessors as servicer on behalf of the Company or for any failure
to discover any such error or omission, unless such predecessor is an
affiliate of PFPC Trust or The PNC Financial Services Group, Inc.
14. DESCRIPTION OF SERVICES.
(a) DELIVERY OF THE PROPERTY. The Company will deliver or arrange for
delivery to PFPC Trust, all the Property owned by the Company,
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 any assets until actual receipt.
(b) RECEIPT AND DISBURSEMENT OF MONEY. PFPC Trust, acting upon Written
Instructions, shall open and maintain an account for the Company (the
"Account")
and shall maintain in the Account all cash and other assets received
from or for the account of the Company specifically designated to such
Account. PFPC Trust shall make cash payments from or for the Account
only for:
(i) purchases of securities in the name of the Company, 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 Company;
(iii) payment of, subject to Written Instructions, interest,
taxes, (provided that tax which PFPC Trust considers is
required to be deducted or withheld "at source" will be
governed by Section 14(h)(iii)(B) of this Agreement),
administration, accounting, distribution, advisory,
management fees or similar expenses which are to be borne
by the Company;
(iv) payment to, subject to receipt of Written Instructions, the
Company's administrator, as agent for the Members, of an
amount equal to the amount of any distributions stated in
the Written Instructions to be distributed in cash by the
administrator to Members, or, in lieu of paying the
Company's administrator, 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 Company, PFPC Trust and
the Company'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 Company 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 Account.
(c) RECEIPT OF SECURITIES; SUBCUSTODIANS.
(i) PFPC Trust shall hold all securities received by it for the
Account 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 or otherwise 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 Company's
Board of Managers, or any officer, employee or agent of the
Company 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) with respect to
domestic assets. Such bank or trust company shall have
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. Any such arrangement will not be
entered into without prior written notice to the Company.
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 Company.
Sub-custodians utilized by PFPC Trust may be subsidiaries or
affiliates of PFPC Trust, and such entities will be compensated for
their services at such rates as are agreed between the entity and PFPC
Trust. 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 under this Agreement.
(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 Company 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
received by PFPC Trust as custodian whereby the authority
of the Company 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 Company 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 Company 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
Company 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 Company;
(vii) release securities belonging to the Company to any bank or
trust company for the purpose of a pledge or hypothecation
to secure any loan incurred by the Company; 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 Company in
connection with any repurchase agreement entered into by
the Company, but only on receipt of payment therefor; and
pay out monies of the Company in connection with such
repurchase agreements, but only upon the delivery of the
securities;
(ix) release and deliver or exchange securities owned by the
Company 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 Company for the
purpose of redeeming in kind Interests of the Company upon
delivery thereof to PFPC Trust; and
(xii) release and deliver or exchange securities owned by the
Company for other purposes.
(e) USE OF BOOK-ENTRY SYSTEM OR OTHER DEPOSITORY. PFPC Trust will deposit
in Book-Entry Systems and other depositories all securities belonging
to the Company eligible for deposit therein and will utilize
Book-Entry Systems and other depositories to the extent possible in
connection with settlements of purchases and sales of securities by
the Company, 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 or other depository as
follows:
(i) With respect to securities of the Company which are
maintained in the Book-Entry System or another depository,
the records of PFPC Trust shall identify by book-entry or
otherwise those securities as belonging to the Company.
(ii) Assets of the Company 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 Company with such reports on its own
system of internal control as the Company may reasonably request from
time to time.
(f) REGISTRATION OF SECURITIES. All securities held for the Company which
are issued or issuable only in bearer form, except such securities
maintained in the Book-Entry System or in another depository, shall be
held by PFPC Trust in bearer form; all other securities maintained for
the Company may be registered in the name of the Company, PFPC Trust,
a Book-Entry System, another depository, a sub-custodian, or any duly
appointed nominees of the Company, PFPC Trust, Book-Entry System,
depository or sub-custodian. The Company reserves the right to
instruct PFPC Trust as to the method of registration and safekeeping
of the securities of the Company. The Company agrees to furnish to
PFPC Trust appropriate instruments to enable PFPC Trust to maintain 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 maintain for
the Account. With respect to uncertificated securities which are
registered in the name of the Company (or a nominee thereof), PFPC
Trust will reflect such securities on its records based upon the
holdings information provided to it by the issuer of such securities,
but notwithstanding anything in this Agreement to the contrary PFPC
Trust shall not be obligated to safekeep such securities or to perform
other duties with respect to such securities other than to make
payment for the purchase of such securities upon receipt of Oral or
Written Instructions, accept in sale proceeds
received by PFPC Trust upon the sale of such securities of which PFPC
Trust is informed pursuant to Oral or Written Instructions, and accept
in other distributions received by PFPC Trust with respect to such
securities or reflect on its records any reinvested distributions with
respect to such securities of which it is informed by the issuer of
the securities.
(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 Company, 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 to the registered holder of such securities. If the
registered holder is not the Company, then Written Instructions or
Oral Instructions must designate the person who owns such securities.
(h) TRANSACTIONS NOT REQUIRING INSTRUCTIONS. Notwithstanding anything in
this Agreement requiring instructions in order to take a particular
action, in the absence of a contrary Written Instruction, PFPC Trust
is authorized to take the following actions without the need for
instructions:
(i) COLLECTION OF INCOME AND OTHER PAYMENTS.
(A) collect and receive for the account of the Company, 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
Company of such receipt and credit such income to the
Company's custodian account;
(B) endorse and deposit for collection, in the name of the
Company, checks, drafts, or other orders for the payment of
money;
(C) receive and hold for the account of the Company all
securities received as a distribution on the Company'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 Company 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 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 Company 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 Company
on behalf of the Company 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) 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 Company;
(2) collect interest and cash dividends received, with
notice to the Company, for the account of the Company;
(3) hold for the account of the Company 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 Company 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 Company'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 Company. 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 Company with the
procedures required by a securities, futures or option
exchange; 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 shares or the principal amount purchased and
accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase; and
(vi) the name of the person from whom or the broker through whom
the purchase was made. PFPC Trust shall upon receipt of
securities purchased by or for the Company (or otherwise in
accordance with standard market practice) pay out of the
monies held for the account of the Company the total amount
payable to the person from whom or the broker through whom
the purchase was made, provided that the same conforms to
the total amount payable as set forth in such Oral
Instructions or Written Instructions.
(k) SALES OF SECURITIES. PFPC Trust shall settle sold securities upon
receipt of Oral Instructions or Written Instructions that specify:
(i) the name of the issuer and the title of the security,
including CUSIP number if applicable;
(ii) the number of shares or principal amount sold, and accrued
interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Company 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 Company upon such sale, provided that the total amount
payable is the same as was set
forth in the Oral Instructions or Written Instructions. Notwithstanding
anything to the contrary in this Agreement, PFPC Trust may accept payment
in such form which is consistent with standard industry practice and may
deliver assets and arrange for payment in accordance with standard market
practice.
(l) REPORTS; PROXY MATERIALS.
(i) PFPC Trust shall furnish to the Company the following reports:
(A) such periodic and special reports as the Company may
reasonably request;
(B) a monthly statement summarizing all transactions and entries
for the account of the Company, listing each portfolio
security belonging to the Company (with the corresponding
security identification number) held at the end of such
month and stating the cash balance of the Company at the end
of such month;
(C) the reports required to be furnished to the Company pursuant
to Rule 17f-4 of the Investment Company Act of 1940, as
amended; and
(D) such other information as may be agreed upon from time to
time between the Company and PFPC Trust.
(ii) PFPC Trust shall transmit promptly to the Company 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 Company as to such actions or events.
(m) CREDITING OF ACCOUNT. PFPC Trust may in its sole discretion credit the
Account with respect to income, dividends, distributions, coupons,
option premiums, other payments or similar items prior to PFPC Trust's
actual receipt thereof, and in addition PFPC Trust may in its sole
discretion credit or debit the assets in the
Account on a contractual settlement date with respect to any sale,
exchange or purchase applicable to the Account; provided that nothing
herein or otherwise shall require PFPC Trust to make any advances or
to credit any amounts until PFPC Trust's actual receipt thereof. If
PFPC Trust credits the 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 Company. The Company
hereby grants to PFPC Trust and to each sub-custodian utilized by PFPC
Trust in connection with providing services to the Company 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 and to each such
sub-custodian of any advance or credit made by PFPC Trust and/or by
such sub-custodian (including reasonable charges related thereto).
Notwithstanding anything in this Agreement to the contrary, PFPC Trust
shall be entitled to assign any rights it has under this sub-section
(m) to any sub-custodian utilized by PFPC Trust in connection with
providing services to the Company which sub-custodian makes any
credits or advances with respect to the Company.
(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
Company. If payment is not received by PFPC Trust within a reasonable
time after proper demands have been made, PFPC Trust shall notify the
Company in writing, including copies of all demand letters, any
written responses and memoranda of all oral responses and shall await
instructions from the Company. 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 Company as soon as
reasonably practicable whenever income due on securities is not
collected in due course and shall provide the Company with periodic
status reports of such income collected after a reasonable time.
(o) EXCESS CASH SWEEP. PFPC Trust will, consistent with applicable law,
sweep any net excess cash balances daily into an investment vehicle or
other instrument designated in Written Instructions, so long as the
investment vehicle or instrument is acceptable to PFPC Trust, subject
to a fee, paid to PFPC Trust for such service, to be agreed between
the parties. Such investment vehicle or instrument may be offered by
an affiliate of PFPC Trust or by a PFPC Trust client and PFPC Trust
may receive compensation therefrom.
(p) 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.
15. DURATION AND TERMINATION.
(a) The term of this Agreement is for an initial term beginning from the
date of this Agreement and continuing through the close of business
two (2) years thereafter (the "Initial Term"). Upon the expiration of
the Initial Term, this Agreement will automatically renew for
successive terms of one (1) year ("Renewal Terms"). Either Party may
terminate this Agreement effective at the end of the Initial Term or
any Renewal Term by providing written notice to the other party of its
intent not to renew. Notice of termination 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 the Company gives notice
of termination, all expenses associated with movement (or duplication)
of records and materials and conversion thereof to a successor service
provider (or each successor service provider, if there are more than
one), and all trailing expenses incurred by PFPC, will be borne by the
Company.
(b) If a party hereto fails in any material respect to perform its duties
and obligations hereunder (a "Defaulting Party"), or if a
representation and warranty of a party hereof becomes untrue or
inaccurate in any material respect, the other party (the
"Non-Defaulting Party") may give written notice thereof to the
Defaulting Party,
and if such material breach shall not have been remedied within sixty
(60) days after such written notice is given, then the Non-Defaulting
Party may terminate this Agreement by giving sixty (60) days' written
notice of such termination to the Defaulting Party. Termination of
this Agreement by the Non-Defaulting Party shall not constitute a
waiver of any other rights or remedies with respect to obligations of
the parties prior to such termination or rights of PFPC to be
reimbursed for all of its out-of-pocket expenses and its normal
monthly fees or other obligations due it. In all cases, termination by
the Non-Defaulting Party shall not constitute a waiver by the
Non-Defaulting Party of any other rights it might have under this
Agreement or otherwise against the Defaulting Party.
(c) Upon occurrence of any of the following events, the party not subject
to such event shall have the right to immediately terminate this
Agreement upon written notice to the other party: (i) either party
ceases doing (or gives notice of ceasing to do) business and its
business is not continued by another corporation or entity who has
agreed to assume its obligations, (ii) either party becomes insolvent
or files for or becomes a party to any involuntary bankruptcy,
receivership or similar proceeding, and such involuntary proceeding is
not dismissed within forty-five (45) calendar days after filing, or
(iii) either party makes an assignment for the benefit of creditors.
(d) In the event this Agreement is terminated (pending appointment of a
successor to PFPC Trust or vote of the Members of the Company 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 Company, except for the books and
records of the Company, to the Company. It may deliver them to a bank
or trust company of PFPC Trust's choice, having 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 Company 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 (including without limitation fees and expenses associated
with deconversion or conversion to another service provider and other
trailing expenses incurred by PFPC Trust). PFPC Trust shall have a
first priority contractual possessory 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.
16. [RESERVED].
17. NOTICES. Notices shall be addressed (a) if to PFPC Trust at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇
▇▇▇▇▇▇▇▇ (or such other address as PFPC Trust may inform the Company in
writing); (b) if to the Company, at Excelsior Directional Hedge Fund of
Funds (TI), LLC, c/o U.S. Trust Hedge Fund Management, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (or such other
address as the Company may inform PFPC Trust in writing) 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 delivery, 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 Company thirty
(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 and Oral
Instructions.
(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 Company 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 Company 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) INFORMATION. The Company will provide such information and
documentation as PFPC Trust may reasonably request in connection with
services provided by PFPC Trust to the Company.
(f) GOVERNING LAW. This Agreement shall be deemed to be a contract made in
Delaware in the United States and governed by Delaware law, without
regard to principles of conflicts of law.
(g) 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.
(h) 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.
(i) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(j) CUSTOMER IDENTIFICATION PROGRAM NOTICE. To help the U.S. government
fight the funding of terrorism and money laundering activities, U.S.
Federal law requires each financial institution to obtain, verify, and
record certain information that identifies each person who initially
opens an account with that financial institution on or after October
1, 2003. Consistent with this requirement, PFPC Trust may request (or
may have already requested) the Company's name, address and taxpayer
identification number or other government-issued identification
number, and, if such party is a natural person, that party's date of
birth. PFPC Trust may also ask (and may have already asked) for
additional identifying information, and PFPC Trust may take steps (and
may have already taken steps) to verify the authenticity and accuracy
of these data elements.
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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EXCELSIOR DIRECTIONAL HEDGE FUND OF
FUNDS (TI), LLC
By:
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Title:
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