Exhibit (j)
CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of ____________________, 2000 by and between PFPC
TRUST COMPANY, a limited purpose trust company incorporated under the laws of
Delaware ("PFPC Trust"), and SAWGRASS FUND, L.L.C. a Delaware limited liability
company (the "Company").
W I T N E S S E T H:
WHEREAS, the Company is registered as a closed-end, non-diversified management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Company wishes to retain PFPC Trust to provide custodian services,
and PFPC Trust wishes to furnish custodian services, either directly or through
an affiliate or affiliates, as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Definitions. As Used in This Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Company and any other person
duly authorized by the Company's Board of Managers to give Oral Instructions and
Written Instructions on behalf of the Company 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 Company by setting forth such limitation in the Authorized
Persons Appendix.
(d) "Board of Managers" and "Members" shall have the same meanings as set forth
in the Company's Limited Liability Company Agreement.
(e) "Book-Entry System" means Federal Reserve Treasury book-entry system for
United States and federal agency securities, its successor or successors, and
its nominee or nominees and any book-entry system maintained by an exchange
registered with the SEC under the 1934 Act.
(f) "CEA" means the Commodities Exchange Act, as amended.
(g) "Interests" mean membership interests in the Company.
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(h) "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.
(i) "PFPC Trust" means PFPC Trust Company, or a subsidiary or affiliate of PFPC
Trust Company.
(j) "SEC" means the Securities and Exchange Commission.
(k) "Securities" means Securities (including, without limitation, equities, debt
obligations, options, and other "securities" as that term is defined in Section
2(a)(36) of the ▇▇▇▇ ▇▇▇) and any contracts for forward or future delivery of
any security, debt obligation or currency, or commodity, all manner of
derivative instruments and any contracts based on any index or group of
Securities, debt obligations or currencies, or commodities, and any options
thereon, as well as investments in registered investment companies and private
investment funds.
(m) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act and the CEA.
(n) "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.
(o) "Written Instructions" mean written instructions signed by two Authorized
Persons, unless specified otherwise herein, and received by PFPC Trust. The
instructions may be delivered electronically 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, in accordance with the terms set forth in this
Agreement. PFPC Trust accepts such appointment and agrees to furnish such
services.
3. Delivery of Documents. The Company has provided or, where applicable, will
provide PFPC Trust with the following:
(a) certified or authenticated copies of the resolutions of the Company's Board
of Managers, approving the appointment of PFPC Trust or its affiliates to
provide services and approving this Agreement;
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(b) a copy of the Company's current Form N-2 registration statement;
(c) a copy of the Limited Liability Company Agreement;
(d) a copy of the Company's investment advisory agreement pursuant to which CIBC
▇▇▇▇▇▇▇▇▇▇▇ Advisers, L.L.C., as Investment Adviser, provides investment advice
to the Company;
(e) a copy of the placement agent agreement with respect to the Company;
(f) a copy of any administration agreements;
(g) copies of any investor servicing agreement; and
(h) certified or authenticated copies of any and all amendments or supplements
to the foregoing.
4. Compliance with Laws.
PFPC Trust undertakes to comply with the 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 Company.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall act only upon
Oral Instructions and Written Instructions, including standing Written
Instructions related to ongoing instructions received electronically.
(b) PFPC Trust shall be entitled to rely upon any Oral 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 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 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 given on behalf of the Company (except where such Oral
Instructions are given by PFPC Trust or its affiliates) and shall endeavor to
ensure 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 shall in no
way 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 Company in acting upon such Oral Instructions or
Written Instructions provided that PFPC Trust's actions comply with the other
provisions of this Agreement.
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6. 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 at its own cost from such counsel of its own choosing.
(c) Conflicting Advice. In the event of a conflict between directions, 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. PFPC Trust shall promptly inform the
Company of such conflict and PFPC Trust shall refrain from acting in the event
of a conflict unless counsel advises PFPC Trust that a failure to take action is
likely to result in additional loss, liability or expense. In the event PFPC
Trust 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 Company or (to the extent permitted
under clause (c) above) 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 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 1940 Act and other applicable securities laws, rules and regulations. The
Company and its duly authorized officers, employees and agents and the staff of
the Securities and Exchange Commission 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 Person, at the
Company's expense. No records will be destroyed without the Company's written
consent.
8. Confidentiality. PFPC Trust agrees to keep confidential all records of the
Company and information relating to the Company and its Members, unless the
release of such records or information is otherwise consented to, in writing, by
the Company. The Company agrees that such consent shall not be unreasonably
withheld and may not be withheld where PFPC Trust
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may be exposed to civil or criminal contempt proceed-ings or when required to
divulge such information or records to duly constituted authorities.
9. Cooperation with Accountants. PFPC Trust shall cooperate with the Company's
independent public accountants and shall take all reasonable action in the
performance of its obligations under this Agreement to assure that the necessary
information is made available to such auditors and accountants for the
expression of their opinion, as required by 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. In the event of equipment
failures, PFPC Trust shall, at no additional expense to the Company, 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 (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
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's
knowledge and belief, the reasonably foreseeable consequences of the Year 2000
Challenge will not adversely effect PFPC'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 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.
13. Indemnification. 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, 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 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 Company or (ii) upon Oral Instructions or
Written Instructions; provided, however, 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.
14. Responsibility of PFPC Trust.
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(a) PFPC Trust shall be under no duty to take any action on behalf of the
Company except as necessary to fulfill its duties and obligations 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 shall be liable for any damages arising out of PFPC
Trust's failure to perform its duties under this Agreement to the extent such
damages arise out of PFPC Trust's willful misfeasance, bad faith, negligence or
reckless disregard of its duties under this Agreement.
(b) Without limiting the generality of the foregoing or of any other provision
of this Agreement, (i) PFPC Trust shall not be liable for losses beyond its
control, provided that PFPC Trust has acted in accordance with the standard of
care set forth above; and (ii) PFPC Trust 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 section 10, 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 Company for any consequential,
special or indirect losses or damages which the Company 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.
(d) Notwithstanding anything in this Agreement to the contrary, the Company
shall not be liable to PFPC Trust for any consequential, special or indirect
losses or damages which PFPC Trust may incur or suffer as a consequence of this
Agreement, whether or not the likelihood of such losses or damages was known by
the Company.
15. 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 such property until
actual receipt.
(b) Receipt and Disbursement of Money. PFPC Trust, acting upon Written
Instructions, shall open and maintain separate accounts (each an "Account") in
the Company's name using all cash received from or for the account of the
Company, subject to the terms of this Agreement.
PFPC Trust shall make cash payments from or for the Accounts only for:
(i) purchases of Securities in the name of the 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;
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(ii) the repurchase of Interests of the Company;
(iii) payment of, subject to Written Instructions, interest, taxes,
administration, accounting, distribution, advisory, management fees or similar
expenses which are to be borne by the 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 Company.
(c) Receipt of Securities; Subcustodians.
(i) PFPC Trust shall hold all Securities received by it for the Company 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 Company 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,
which are banks as defined by the 1940 Act, to perform duties described in this
sub-section (c) with respect to domestic assets. Such bank or trust company
shall have an aggregate capital, surplus and undivided profits, according to its
last published report, of at least one million dollars ($1,000,000), if it is a
subsidiary or affiliate of PFPC Trust, or at least twenty million dollars
($20,000,000) if such bank or trust company is not a subsidiary or affiliate of
PFPC Trust. In
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addition, such bank or trust company must be qualified to act as custodian and
agree to comply with the relevant provisions of the 1940 Act and other
applicable rules and regulations, including but not limited to, if applicable,
standards relating to the custody of foreign Securities. Any such arrangement
will not be entered into without prior written notice to the Company.
PFPC Trust shall remain responsible for the performance of all of its duties as
described in this Agreement and shall hold the Company harmless from its own
acts or omissions, under the standards of care provided for herein and from the
acts and omissions of any sub-custodian chosen by PFPC Trust under the terms of
this sub-section (c).
(d) Transactions Requiring Instructions. Upon receipt of Oral Instructions or
Written Instructions and not otherwise, PFPC Trust, directly or through the use
of a Book-Entry System, shall:
(i) deliver any Securities held for the Company against the receipt of payment
for the sale of such Securities;
(ii) execute and deliver to such persons as may be designated in such Oral
Instructions or Written Instructions, proxies, consents, authorizations, and any
other instruments received by PFPC Trust as custodian whereby the authority of
the 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; 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
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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 on behalf of the Company, but only on
receipt of payment therefor; and pay out moneys 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. PFPC Trust is authorized and instructed on a
continuous basis, to deposit in Book-Entry Systems all Securities belonging to
the Company eligible for deposit therein and to utilize Book-Entry Systems to
the extent possible in connection with settlements of purchases and sales of
Securities by the 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 as follows:
(i) With respect to Securities of the Company which are maintained in the
Book-Entry System, the records of PFPC Trust shall identify by book-entry or
otherwise those Securities belonging to the Company.
(ii) Assets of the Company deposited in the Book-Entry System will at all times
be segregated from any assets and cash controlled by PFPC Trust in other than a
fiduciary or custodian capacity but may be commingled with other assets held in
such capacities.
PFPC Trust will provide the 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 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 Company,
PFPC Trust, a Book-Entry System, a sub-custodian, or any duly appointed nominees
of the Company, PFPC Trust, Book-Entry System 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 hold or deliver in
proper form for transfer, or to
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register in the name of its nominee or in the name of the Book-Entry System or
in the name of another appropriate entity, any Securities which it may hold for
the Company and which may from time to time be registered in the name of the
Company.
(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 a Book-Entry System, shall execute in blank and promptly
deliver all notices, proxies and proxy soliciting materials received by PFPC
Trust as custodian to the registered holder of such Securities. If the
registered holder is not the Company, then Written Instructions or Oral
Instructions must designate the person who owns such Securities.
(h) Transactions Not Requiring Instructions. In the absence of contrary Written
Instructions, PFPC Trust is authorized to take the following actions:
(i) Collection of Income and Other Payments.
(A) collect and receive for the account of the 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, as collected, 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
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
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(3) for transfer of Securities into the name 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) unless and until PFPC Trust receives Oral Instructions or Written
Instructions to the contrary, PFPC Trust shall:
(1) pay all income items held by it which call for payment upon presentation and
hold the cash received by it upon such payment for the account of the 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) execute as agent on behalf of the Company all necessary ownership
certificates required by the Internal Revenue Code or the Income Tax Regulations
of the United States Treasury Department or under the laws of any state now or
hereafter in effect, inserting the Company's name, on such certificate as the
owner of the Securities covered thereby, to the extent it may lawfully do so.
(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:
(A) for the purposes of compliance by the Company with the procedures required
by a securities, futures or option exchange, providing such procedures comply
with the 1940 Act and any releases of the SEC relating to the maintenance of
segregated accounts by registered investment companies; and
(B) upon receipt of Written Instructions, for other purposes.
(j) Purchases of Securities. PFPC Trust shall settle purchased Securities upon
receipt of Oral Instructions or Written Instructions that specify:
(i) the name of the issuer and the title of the Securities, including CUSIP
number if applicable;
(ii) the number of Interests or the principal amount purchased and accrued
interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
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(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 pay out of the moneys 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 Interests or principal amount sold, and accrued interest, if
any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the 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 the other provisions hereof, PFPC Trust may accept payment in
such form which is consistent with industry practice and may deliver Securities
and arrange for payment in accordance with the customs prevailing among dealers
in Securities.
(l) Reports; Proxy Materials.
(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 adjusted average cost of each issue and the market value at the end of such
month and stating the cash account of the Company including disbursements;
(C) the reports required to be furnished to the Company pursuant to Rule 17f-4
of the 1940 Act; and
(D) such other information as may be agreed upon from time to time between the
Company and PFPC Trust.
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(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 Accounts. If PFPC Trust in its sole discretion credits an
Account with respect to (a) income, dividends, distributions, coupons, option
premiums, other payments or similar items on a contractual payment date or
otherwise in advance of PFPC Trust's actual receipt of the amount due, (b) the
proceeds of any sale or other disposition of assets on the contractual
settlement date or otherwise in advance of PFPC Trust's actual receipt of the
amount due or (c) provisional crediting of any amounts due, and (i) PFPC Trust
is subsequently unable to collect full and final payment for the amounts so
credited within a reasonable time period using reasonable efforts or (ii)
pursuant to standard industry practice, law or regulation PFPC Trust is required
to repay to a third party such amounts so credited, or if any Property has been
incorrectly credited, PFPC Trust shall have the absolute right in its sole
discretion without demand to reverse any such credit or payment, to debit or
deduct the amount of such credit or payment from the Account, and to otherwise
pursue recovery of any such amounts so credited from the Company. Nothing herein
or otherwise shall require PFPC Trust to make any advances or to credit any
amounts until PFPC Trust's actual receipt thereof. The Company hereby grants a
first priority contractual possessory security interest in and a right of setoff
against the assets maintained hereunder in the amount necessary to secure the
return and payment to PFPC Trust of any advance or credit made by PFPC Trust
(including reasonable charges related thereto).
(n) Collections. All collections of monies or other property in respect, or
which are to become 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.
16. Duration and Termination. This Agreement shall continue until terminated by
either party upon ninety (90) days' prior written notice to the other party by
certified mail with confirmed receipt. 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 Portfolios to the Company. 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 Company to be held
under terms similar to those of this Agreement.
17. Notices. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable, telex or
facsimile sending device. Notices shall be addressed (a) if to PFPC Trust at
Airport Business Center, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇-▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: Custody Manager (b) if to the Company, at c/o
CIBC World Markets Corp., One World Financial Center, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, 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. This Agreement and the rights and duties of the
parties herein may not be assigned; provided, however, that PFPC Trust may
assign its rights and delegate its duties hereunder at no additional cost to the
Company to any affiliate of or any majority-owned direct or indirect subsidiary
of PFPC Inc. or of PNC Bank Corp., provided that (i) PFPC Trust gives the
Company sixty (60) days' prior written notice of such assignment or delegation;
(ii) the assignee or delegate agrees to comply with the relevant provisions of
the Securities Laws; and (iii) PFPC Trust and such assignee or delegate promptly
provide such information as the Company may request, and respond to such
questions as the Company may ask, relative to the assignment or delegation,
(including, without limitation) the capabilities of the assignee or delegate.
Except as stated above, this Agreement may not be assigned or delegated by any
party without the written consent of each party.
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 Instruc-tions.
(b) Captions. The captions in this Agreement are included for conve-nience of
reference only and in no way define or delimit any of the provi-sions 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.
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(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:
SAWGRASS FUND, L.L.C.
By:
Title:
AUTHORIZED PERSONS APPENDIX
NAME (Type) SIGNATURE
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