Exhibit 10.4
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TRANSFER AGENCY SERVICES AGREEMENT
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THIS AGREEMENT is made as of February 1, 2002 by and between
PFPC INC., a Massachusetts corporation ("PFPC"), and EXCELSIOR PRIVATE
EQUITY FUND II, INC., a Maryland corporation (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is a closed-end, non-diversified management
investment company that has elected to be treated as a business development
company under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Fund wishes to retain PFPC to serve as transfer
agent, registrar, dividend disbursing agent and shareholder servicing agent
and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Definitions. As Used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Fund and any other
person duly authorized by the Fund's Board of
Directors/Trustees to give Oral Instructions and Written
Instructions on behalf of the Fund. An Authorized Person's
scope of authority may be limited by setting forth such
limitation in a written document signed by both parties hereto.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Change of Control" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 25% or more of the
beneficial ownership of the shares of common stock or shares of
beneficial interest of an entity or its parents(s).
(f) "Oral Instructions" mean oral instructions received by PFPC
from an Authorized Person or from a person reasonably believed
by PFPC to be an Authorized Person. PFPC 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.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act
and the CEA.
(i) "Shares" mean the shares of beneficial interest of any series
or class of the Fund.
(j) "Written Instructions" mean (i) written instructions signed by
an Authorized Person or a person reasonably believed by PFPC to
be an Authorized Person and received by PFPC or (ii) trade
instructions transmitted (and received by PFPC) by means of an
electronic transaction reporting system, access to which
requires use of a password or other authorized identifier. The
instructions may be delivered by hand, mail, tested telegram,
cable, telex or facsimile sending device.
2. Appointment. The Fund hereby appoints PFPC to serve as transfer
agent, registrar, dividend disbursing agent and shareholder servicing
agent to the Fund in accordance with the terms set forth in this
Agreement. PFPC accepts such appointment and agrees to furnish such
services.
3. Delivery of Documents. The Fund has provided or, where applicable,
will provide PFPC with the following:
(a) certified or authenticated copies of the resolutions of the
Fund's Board of Directors/Trustees, approving the appointment
of PFPC or its affiliates to provide services to the Fund and
approving this Agreement;
(b) A copy of the Fund's most recent effective registration statement;
(c) A copy of the advisory agreement with respect to each
investment Portfolio of the Fund;
(d) A copy of the distribution/underwriting agreement with respect
to each class of Shares of the Fund;
(e) A copy of each Portfolio's administration agreements if PFPC is
not providing the Portfolio with such services;
(f) Copies of any distribution and/or shareholder servicing plans
and agreements made in respect of the Fund or a Portfolio;
(g) A copy of the Fund's organizational documents, as filed with
the state in which the Fund is organized; and
(h) Copies (certified or authenticated where applicable) of any and
all amendments or supplements to the foregoing.
4. Compliance with Rules and Regulations. PFPC undertakes to comply
with all applicable requirements of the Securities Laws and any
laws, rules and regulations of governmental authorities having
jurisdiction with respect to the duties to be performed by PFPC
hereunder as are specified in writing by the Fund to PFPC and
agreed in writing by PFPC. Except as specifically set forth
herein, PFPC assumes no responsibility for such compliance by the
Fund.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC shall act
only upon Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or
from a person reasonably believed by PFPC to be an Authorized
Person) pursuant to this Agreement. PFPC may assume that any
Oral Instruction or Written Instruction received hereunder is
not in any way inconsistent with the provisions of
organizational documents or this Agreement or of any vote,
resolution or proceeding of the Fund's Board of
Directors/Trustees or of the Fund's shareholders, unless and
until PFPC receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions
confirming Oral Instructions (except where such Oral
Instructions are given by PFPC or its affiliates) so that PFPC
receives the Written Instructions as promptly as practicable
and in any event by the close of business on the day after such
Oral Instructions are received. The fact that such confirming
Written Instructions are not received by PFPC 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's ability to rely upon such
Oral Instructions. Where Oral Instructions or Written
Instructions reasonably appear to have been received from an
Authorized Person, PFPC shall incur no liability to the Fund in
acting upon such Oral Instructions or Written Instructions
provided that PFPC's actions comply with the other provisions
of this Agreement.
6. Right to Receive Advice.
(a) Advice of the Fund. If PFPC is in doubt as to any action it
should or should not take, PFPC may request directions or
advice, including Oral Instructions or Written Instructions,
from the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any question
of law pertaining to any action it should or should not take,
PFPC may request advice at its own cost from such counsel of
its own choosing (who may, without limitation, be counsel for
the Fund, the Fund's investment adviser or PFPC, at the option
of PFPC).
(c) Conflicting Advice. In the event of a conflict between
directions, advice or Oral Instructions or Written Instructions
PFPC receives from the Fund, and the advice PFPC receives from
counsel, PFPC may rely upon and follow the advice of such
counsel.
(d) Protection of PFPC. PFPC 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
Fund or from counsel selected with reasonable care and which
PFPC believes, in good faith, to be consistent with those
directions, advice and Oral Instructions or Written
Instructions. Nothing in this section shall be construed so as
to impose an obligation upon PFPC (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 unless, under the terms of
other provisions of this Agreement, the same is a condition of
PFPC's properly taking or not taking such action.
7. Records; Visits. The books and records pertaining to the Fund, which
are in the possession or under the control of PFPC, shall be the
property of the Fund. Such books and records shall be prepared and
maintained as required by the 1940 Act and other applicable
securities laws, rules and regulations. The Fund and Authorized
Persons shall have access to such books and records at all times
during PFPC's normal business hours. Upon the reasonable request of
the Fund, copies of any such books and records shall be provided by
PFPC to the Fund or to an Authorized Person, at the Fund's expense.
8. Confidentiality. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information
that is competitively sensitive material, and not generally known to
the public, including, but not limited to, information about product
plans, marketing strategies, finances, operations, customer
relationships, customer profiles, customer lists, sales estimates,
business plans, and internal performance results relating to the
past, present or future business activities of the Fund or PFPC,
their respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them; (b) any scientific
or technical information, design, process, procedure, formula, or
improvement that is commercially valuable and secret in the sense
that its confidentiality affords the Fund or PFPC a competitive
advantage over its competitors; (c) all confidential or proprietary
concepts, documentation, reports, data, specifications, computer
software, source code, object code, flow charts, databases,
inventions, know-how, and trade secrets, whether or not patentable or
copyrightable; and (d) anything designated as confidential.
Notwithstanding the foregoing, information shall not be subject to
such confidentiality obligations if it: (a) is already known to the
receiving party at the time it is obtained; (b) is or becomes
publicly known or available through no wrongful act of the receiving
party; (c) is rightfully received from a third party who, to the best
of the receiving party's knowledge, is not under a duty of
confidentiality; (d) is released by the protected party to a third
party without restriction; (e) is required to be disclosed by the
receiving party pursuant to a requirement of a court order, subpoena,
governmental or regulatory agency or law (provided the receiving
party will provide the other party written notice of such
requirement, to the extent such notice is permitted); (f) is relevant
to the defense of any claim or cause of action asserted against the
receiving party; or (g) has been or is independently developed or
obtained by the receiving party.
9. Cooperation with Accountants. PFPC shall cooperate with the Fund's
independent public accountants and shall take all reasonable actions
in the performance of its obligations under this Agreement to ensure
that the necessary information is made available to such accountants
for the expression of their opinion, as required by the Fund.
10. PFPC System. PFPC 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 in connection with the services
provided by PFPC to the Fund (collectivelly "PFPC System Elements").
To the extent that PFPC System Elements are incorporated in any work
product for the Fund, PFPC Trust hereby grants a non-exclusive,
royalty-free and non-transferable license to use the PFPC System
Elements in the form provided to the Fund.
11. Disaster Recovery. PFPC 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 shall, at no additional expense to the Fund,
take reasonable steps to minimize service interruptions. PFPC 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's own willful misfeasance, bad
faith, negligence or reckless disregard of its duties or obligations
under this Agreement.
12. Compensation. As compensation for services rendered by PFPC during
the term of this Agreement, the Fund will pay to PFPC a fee or fees
as may be agreed to from time to time in writing by the Fund and
PFPC. The Fund acknowledges that PFPC may receive float benefits
and/or investment earnings in connection with maintaining certain
accounts required to provide services under this Agreement.
13. Indemnification.
(a) The Fund agrees to indemnify, defend and hold harmless PFPC and
its affiliates, including their respective officers, directors,
agents and employees, from all taxes, charges, expenses,
assessments, claims and liabilities (including, without
limitation, attorneys' fees and disbursements and liabilities
arising under the Securities Laws and any state and foreign
securities and blue sky laws) arising directly or indirectly
from any action or omission to act which PFPC takes in
connection with the provision of services to the Fund. Neither
PFPC, nor any of its affiliates, shall be indemnified against
any liability (or any expenses incident to such liability)
caused by PFPC's or its affiliates' own willful misfeasance,
bad faith, negligence or reckless disregard of its duties and
obligations under this Agreement, provided that in the absence
of a finding to the contrary the acceptance, processing and/or
negotiation of a fraudulent payment for the purchase of Shares
shall be presumed not to have been the result of PFPC's or its
affiliates own willful misfeasance, bad faith, negligence or
reckless disregard of such duties and obligations. The
provisions of this Section 13 shall survive termination of this
Agreement.
(b) Notwithstanding anything in this Agreement to the contrary,
neither the Fund nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether
or not the likelihood of such damages or loss was known by the
Fund or its affiliates.
14. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action hereunder on
behalf of the Fund except as specifically set forth herein or
as may be specifically agreed to by PFPC and the Fund in a
written amendment hereto. PFPC 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 shall be liable only for damages
arising out of PFPC's failure to perform its duties under this
Agreement to the extent such damages arise out of PFPC's
willful misfeasance, bad faith, negligence or reckless
disregard of such duties.
(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) PFPC shall not be liable
for losses beyond its control, including without limitation
(subject to Section 11), delays or errors or loss of data
occurring by reason of circumstances beyond PFPC's control
provided that PFPC has acted in accordance with the standard
set forth in Section 14(a) above; and (ii) PFPC shall not be
under any duty or obligation to inquire into and shall not be
liable for 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 reasonably
believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC 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 or its affiliates.
(d) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
15. Description of Services.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Maintain shareholder registrations;
(ii) Provide toll-free lines for shareholder and broker-dealer
use;
(iii) Provide periodic shareholder lists and statistics;
(iv) Mailing of year-end tax information; and
(v) Periodic mailing of shareholder account information and
Fund financial reports.
(b) Dividends and Distributions. PFPC must receive a resolution of
the Fund's Board of Directors/Trustees authorizing the
declaration and payment of dividends and distributions. Upon
receipt of the resolution, PFPC shall issue the dividends and
distributions in cash, or, if the resolution so provides, pay
such dividends and distributions in Shares. Such issuance or
payment shall be made after deduction and payment of the
required amount of funds to be withheld in accordance with any
applicable tax laws or other laws, rules or regulations. PFPC
shall timely send to the Fund's shareholders tax forms and
other information, or permissible substitute notice, relating
to dividends and distributions, paid by the Fund as are
required to be filed and mailed by applicable law, rule or
regulation. PFPC shall maintain and file with the United States
Internal Revenue Service and other appropriate taxing
authorities reports relating to all dividends above a
stipulated amount (currently $10.00 accumulated yearly
dividends) paid by the Fund to its shareholders as required by
tax or other law, rule or regulation. As the dividend
disbursing agent, PFPC shall, on or before the payment date of
any such dividend or distribution, notify the fund accounting
agent of the estimated amount required to pay any portion of
said dividend or distribution which is payable in cash, and on
or before the payment date of such distribution, the Fund shall
instruct the custodian to make available to the dividend
disbursing agent sufficient funds for the cash amount to be
paid out.
(c) Communications to Shareholders. Upon timely written
instructions, PFPC shall mail all communications by the Fund to
its shareholders, including:
(i) Reports to shareholders;
(ii) Quarterly dividend account statements;
(iii) Dividend and distribution notices;
(iv) Proxy material; and
(v) Tax form information.
PFPC will receive and tabulate the proxy cards for the meetings
of the Fund's shareholders.
(d) Records. PFPC shall maintain records of the accounts for each
shareholder showing the following information:
(i) Name, address and United States Tax Identification or
Social Security number;
(ii) Number and class of shares held and number and class of
shares for which certificates, if any, have been issued,
including certificate numbers and denominations;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions paid
and the date and price for all transactions on a
shareholder's account;
(iv) Any stop or restraining order placed against a
shareholder's account;
(v) Any correspondence relating to the current maintenance of
a shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for the transfer agent
to perform any calculations contemplated or required by
this Agreement.
(e) Shareholder Inspection of Stock Records. Upon requests from
Fund shareholders to inspect stock records, PFPC will notify
the Fund and require instructions granting or denying each such
request. Unless PFPC has acted contrary to the Fund's
instructions, the Fund agrees to release PFPC from any
liability for refusal of permission for a particular
shareholder to inspect the Fund's shareholder records.
16. Duration and Termination. This Agreement shall continue until
terminated by the Fund or by PFPC on sixty (60) days' prior written
notice to the other party. In the event the Fund gives notice of
termination, all expenses associated with movement (or duplication)
of records and materials and conversion thereof to a successor
transfer agent or other service provider (or each successive service
provider, if there are more than one), and all trailing expenses
incurred by PFPC, will be borne by the Fund.
17. Change of Control. Notwithstanding any other provision of this
Agreement, in the event of an agreement to enter into a transaction
that would result in a Change of Control of the Fund's adviser or
sponsor, the Fund's ability to terminate the Agreement pursuant to
Section 16 will be suspended from the time of such agreement until
the later to occur of (i) the first anniversary of the Change of
Control and (ii) the date which is exactly 18 months after the date
set forth in the first paragraph of this Agreement.
18. Notices. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to
the Fund, ___________________, Attention: _________________; or (c)
if to neither of the foregoing, at such other address as shall have
been given by like notice to the sender of any such notice or other
communication by the other party. If notice is sent by confirming
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 three days
after it has been mailed. If notice is sent by messenger, it shall be
deemed to have been given on the day it is delivered.
19. Amendments. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
20. Delegation; Assignment. PFPC may assign its rights and delegate its
duties hereunder to any majority-owned direct or indirect subsidiary
of PFPC or of The PNC Financial Services Group, Inc., provided that
PFPC gives the Fund 30 days prior written notice of such assignment
or delegation. In addition, PFPC may, in its sole discretion, engage
subcontractors to perform any of the obligations contained in this
Agreement to be performed by PFPC, provided, however, PFPC shall
remain responsible for the acts or omissions of any such
sub-contractors.
21. 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.
22. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
23. Force Majeure. "Notwithstanding anything in this Agreement to the
contrary, in no event shall either party be liable for any loss if
and to the extent such loss is caused, directly or indirectly, by (i)
fire, flood, elements of nature or other acts of God; (ii) any
outbreak or escalation of hostilities, war, riots or civil disorders
in any country, (iii) any act or omission of any governmental
authority; (iv) any labor disputes (whether or not the employees'
demands are reasonable or within the party's power to satisfy); or
(v) nonperformance by a third party or any similar cause beyond the
reasonable control of such party, including without limitation,
failures or fluctuations in telecommunications, the Internet or other
equipment operated or controlled by such party."
24. Miscellaneous.
(a) Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties.
(b) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees not
to make any modifications to its registration statement or
adopt any policies which would affect materially the
obligations or responsibilities of PFPC hereunder without the
prior written approval of PFPC, which approval shall not be
unreasonably withheld or delayed.
(c) 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.
(d) 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.
(e) 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.
(f) 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.
(g) No Representations or Warranties. Except as expressly provided
in this Agreement, PFPC hereby disclaims all representations
and warranties, express or implied, made to the Fund or any
other person, including, without limitation, any warranties
regarding quality, suitability, merchantability, fitness for a
particular purpose or otherwise (irrespective of any course of
dealing, custom or usage of trade), of any services or any
goods provided incidental to services provided under this
Agreement. PFPC disclaims any warranty of title or
non-infringement except as otherwise set forth in this Agreement.
(h) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall constitute the valid and binding execution
hereof by such party.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above written.
PFPC INC.
By: _______________________
Title: _____________________
EXCELSIOR PRIVATE EQUITY FUND II, INC.
By: _______________________
Title: _____________________
