Exhibit 10.3
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CUSTODIAN SERVICES AGREEMENT
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THIS AGREEMENT is made as of January 1, 2002 by and between PFPC
TRUST COMPANY ("PFPC Trust"), and UST PRIVATE EQUITY INVESTORS FUND, INC.
(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 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 Fund and any
other person authorized by the Fund to give Oral or 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) "Book-Entry System" means Federal Reserve Treasury
book-entry system for United States and federal agency
securities, its successor or successors, and its nominee or
nominees and any book-entry system maintained by an exchange
registered with the SEC under the 1934 Act.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "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 parent(s).
(g) "Oral Instructions" mean oral instructions received by PFPC
Trust from an Authorized Person or from a person reasonably
believed by PFPC Trust to be an Authorized Person. 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.
(h) "PFPC Trust" means PFPC Trust Company or a subsidiary or
affiliate of PFPC Trust Company.
(i) "SEC" means the Securities and Exchange Commission.
(j) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940
Act and the CEA.
(k) "Shares" mean the shares of beneficial interest of any
series or class of the Fund.
(l) "Property" means:
(i) any and all securities and other investment items
which the Fund 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 Fund;
(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
Fund, which are received by PFPC Trust from time to
time, from or on behalf of the Fund.
(m) "Written Instructions" mean (i) written instructions signed
by two 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 or
by hand, mail, tested telegram, cable, telex or facsimile
sending device.
2. Appointment. The Fund hereby appoints PFPC Trust to provide
custodian services to the Fund and PFPC Trust accepts such
appointment and agrees to furnish such services.
3. Delivery of Documents. The Fund has provided or, where applicable,
will provide PFPC Trust with the following:
(a) at PFPC Trust's request, certified or authenticated copies
of the resolutions of the Fund's directors, approving the
appointment of PFPC Trust or its affiliates to provide
services;
(b) a copy of the Fund's registration of securities pursuant to
section 12(g) of the Securities Exchange Act of 1934 on Form
8-A;
(c) a copy of the Fund's notification of election to be subject
to sections 55 through 65 of the 1940 Act pursuant to
Section 54(a) of the 1940 Act;
(d) a copy of the Fund's most recent effective registration
statement;
(e) a copy of the Fund's advisory agreements;
(f) a copy of the distribution/underwriting agreement with
respect to each class of Shares;
(g) a copy of the Fund's administration agreement;
(h) copies of any distribution and/or member servicing plans and
agreements made in respect of the Fund; and
(i) certified or authenticated copies of any and all amendments
or supplements to the foregoing.
4. Compliance with Laws.
PFPC Trust undertakes to comply with material applicable
requirements of the Securities Laws and material laws, rules and
regulations of governmental authorities having jurisdiction with
respect to the duties to be performed by PFPC Trust hereunder.
Except as specifically set forth herein, PFPC Trust assumes no
responsibility for such compliance by the Fund or any other
entity.
5. 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 from an
Authorized Person (or from a person reasonably believed by
PFPC Trust to be an Authorized Person) pursuant to this
Agreement. PFPC Trust may assume that any Oral Instructions
or Written Instructions received hereunder are not in any
way inconsistent with the provisions of organizational
documents of the Fund or of any vote, resolution or
proceeding of the Fund's directors or of the Fund's
shareholders, unless and until PFPC Trust receives Written
Instructions to the contrary.
(c) The Fund 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 day after 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. Where Oral Instructions
or Written Instructions reasonably appear to have been
received from an Authorized Person, PFPC Trust shall incur
no liability to the Fund in acting upon such Oral
Instructions or Written Instructions provided that PFPC
Trust's actions comply with the other provisions of this
Agreement.
6. Right to Receive Advice.
(a) Advice of the Fund. 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 Fund.
(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 Fund, the Fund'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 Fund, and the
advice it receives from counsel, PFPC Trust shall be
entitled to rely upon and follow the advice of counsel.
(d) Protection of PFPC Trust. PFPC Trust shall be protected in
any action it takes or does not take in reliance upon
directions or advice or Oral Instructions or Written
Instructions it receives from the Fund 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 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.
7. Records; Visits. The books and records pertaining to the Fund,
which are in the possession or under the control of PFPC Trust,
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 Trust's normal business hours. Upon the
reasonable request of the Fund, copies of any such books and
records shall be provided by PFPC Trust to the Fund or to an
authorized representative of the Fund, 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 Trust, their respective
subsidiaries and affiliated companies and the customers, clients
and suppliers of any of them; (b) any scientific or technical
information, design, process, procedure, formula, or improvement
that is commercially valuable and secret in the sense that its
confidentiality affords the Fund or PFPC Trust a competitive
advantage over its competitors; (c) all confidential or
proprietary concepts, documentation, reports, data,
specifications, computer software, source code, object code, flow
charts, databases, inventions, know-how, and trade secrets,
whether or not patentable or copyrightable; and (d) anything
designated as confidential. Notwithstanding the foregoing,
information shall not be subject to such confidentiality
obligations if it: (a) is already known to the receiving party at
the time it is obtained; (b) is or becomes publicly known or
available through no wrongful act of the receiving party; (c) is
rightfully received from a third party who, to the best of the
receiving party's knowledge, is not under a duty of
confidentiality; (d) is released by the protected party to a third
party without restriction; (e) is required to be disclosed by the
receiving party pursuant to a requirement of a court order,
subpoena, governmental or regulatory agency or law (provided the
receiving party will provide the other party written notice of
such requirement, to the extent such notice is permitted); (f) is
relevant to the defense of any claim or cause of action asserted
against the receiving party; or (g) has been or is independently
developed or obtained by the receiving party.
9. Cooperation with Accountants. PFPC Trust shall cooperate with the
Fund's independent public accountants and shall take all
reasonable action to make any requested information available to
such accountants as reasonably requested by the Fund.
10. 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 Fund (collectively, "PFPC
System Elements"). To the extent that PFPC System Elements are
incorporated in any work product produced for the Fund, PFPC Trust
hereby grants a non-exclusive, royalty-free and non-transferable
license to use for its internal purposes the PFPC System Elements
in the form provided to the Fund.
11. 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 Fund, 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.
12. Compensation. As compensation for custody services rendered by
PFPC Trust during the term of this Agreement, the Fund will pay to
PFPC Trust a fee or fees as may be agreed to in writing from time
to time by the Fund and PFPC Trust. The Fund acknowledges that
PFPC Trust may receive float benefits in connection with
maintaining certain accounts required to provide services under
this Agreement.
13. Indemnification.
(a) The Fund 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 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
Trust takes in connection with the provision of services to
the Fund. 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, negligence
or reckless disregard of its duties and obligations under
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 Trust.
(a) PFPC Trust 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
Trust and the Fund in a written amendment hereto. PFPC Trust
shall be obligated to exercise care and diligence in the
performance of its duties hereunder and to act in good faith
in performing services provided for under this Agreement.
PFPC Trust shall be liable only for any damages arising out
of PFPC Trust's failure to perform its duties under this
Agreement to the extent such damages arise out of PFPC
Trust's willful misfeasance, bad faith, 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, including without
limitation (subject to Section 11), delays or errors or loss
of data occurring by reason of circumstances beyond PFPC
Trust's control, provided that PFPC Trust has acted in
accordance with the standard set forth in Section 14(a)
above; 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 or authority or lack thereof of any
Oral Instruction or Written Instruction, notice or other
instrument 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) Each party shall have a duty to mitigate damages for which
the other party may become responsible.
15. Description of Services.
(a) Delivery of the Property. The Fund will deliver or arrange
for delivery to PFPC Trust, all the Property owned by the
Fund, including cash received as a result of the
distribution of Shares, during the term of this Agreement.
PFPC Trust will not be responsible for such property until
actual receipt.
(b) Receipt and Disbursement of Money. PFPC Trust, acting upon
Written Instructions, shall open and maintain separate
accounts in the Fund's name using all cash received from or
for the account of the Fund, subject to the terms of this
Agreement. In addition, upon Written Instructions, PFPC
Trust shall open separate custodial accounts for the Fund
(collectively, the "Accounts") and shall hold in the
Accounts all cash received from or for the Accounts of the
Fund specifically designated to the Fund.
PFPC Trust shall make cash payments from or for the Fund only
for:
(i) purchases of securities in the name of the Fund, PFPC
Trust, 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 the
broker's or dealer's confirmation or payee's invoice,
as appropriate;
(ii) purchase or redemption of Shares of the Fund
delivered to PFPC Trust;
(iii) payment of, subject to Written Instructions,
interest, taxes, administration, accounting,
distribution, advisory, management fees or similar
expenses which are to be borne by the Fund;
(iv) payment to, subject to receipt of Written
Instructions, the Fund's transfer agent, as agent for
the shareholders, of an amount equal to the amount of
dividends and distributions stated in the Written
Instructions to be distributed in cash by the
transfer agent to shareholders, or, in lieu of paying
the Fund's transfer agent, PFPC Trust may arrange for
the direct payment of cash dividends and
distributions to shareholders in accordance with
procedures mutually agreed upon from time to time by
and among the Fund, PFPC Trust and the Fund's
transfer agent.
(v) payments, upon receipt of Written Instructions, in
connection with the conversion, exchange or surrender
of securities owned or subscribed to by the Fund and
held by or delivered to PFPC Trust;
(vi) payments of the amounts of dividends received with
respect to securities sold short;
(vii) payments made to a sub-custodian pursuant to
provisions in sub-section (c) of this Section; and
(viii) 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 Accounts.
(c) Receipt of Securities; Subcustodians.
(i) PFPC Trust shall hold all securities received by it
for the Accounts in a separate account that
physically segregates such securities from those of
any other persons, firms or corporations, except for
securities held in a Book-Entry System. All such
securities shall be held or disposed of only upon
Written Instructions of the Fund 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
Fund's directors, or any officer, employee or agent
of the Fund withdraw any securities.
At PFPC Trust's own expense and for its own
convenience, PFPC Trust may enter into sub-custodian
agreements with other 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 an aggregate capital, surplus and
undivided profits, according to its last published
report, of at least one million dollars ($1,000,000),
if it is a subsidiary or affiliate of PFPC Trust, or
at least twenty million dollars ($20,000,000) if such
bank or trust company is not a subsidiary or
affiliate of PFPC Trust. In addition, such bank or
trust company must be qualified to act as custodian
and agree to comply with the relevant provisions of
applicable rules and regulations. Any such
arrangement will not be entered into without prior
written notice to the Fund (or as otherwise provided
in the 1940 Act).
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 Fund
(or as otherwise provided in the 1940 Act).
PFPC Trust shall remain responsible for the
performance of all of its duties as described in this
Agreement and shall hold the Fund harmless from its
own acts or omissions, under the standards of care
provided for herein, or the acts and omissions of any
sub-custodian chosen by PFPC Trust under the terms of
this sub-section (c).
(d) Transactions Requiring Instructions. Upon receipt of Oral
Instructions or Written Instructions and not otherwise, PFPC
Trust, directly or through the use of the Book-Entry System,
shall:
(i) deliver any securities held for the Fund against the
receipt of payment for the sale of such securities;
(ii) execute and deliver to such persons as may be
designated in such Oral Instructions or Written
Instructions, proxies, consents, authorizations, and
any other instruments whereby the authority of the
Fund 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 Fund 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 Fund 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
Fund 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 Fund;
(vii) release securities belonging to the Fund to any bank
or trust company for the purpose of a pledge or
hypothecation to secure any loan incurred by the
Fund; 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 Fund in
connection with any repurchase agreement entered into
on behalf of the Fund, but only on receipt of payment
therefor; and pay out moneys of the Fund in
connection with such repurchase agreements, but only
upon the delivery of the securities;
(ix) release and deliver or exchange securities owned by
the Fund 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 Fund for
the purpose of redeeming in kind shares of the Fund
upon delivery thereof to PFPC Trust; and
(xii) release and deliver or exchange securities owned by
the Fund for other purposes.
PFPC Trust must also receive a certified resolution
describing the nature of the corporate purpose and
the name and address of the person(s) to whom
delivery shall be made when such action is pursuant
to sub-paragraph d(xii).
(e) Use of Book-Entry System. PFPC Trust is authorized and
instructed, on a continuous basis, to deposit in the
Book-Entry System all securities belonging to the Fund
eligible for deposit therein and to utilize the Book-Entry
System to the extent possible in connection with settlements
of purchases and sales of securities by the Fund, 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 Fund 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 Fund.
(ii) Assets of the Fund 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 Fund with such reports on its
own system of internal control as the Fund may reasonably
request from time to time.
(f) Registration of Securities. All Securities held for the Fund
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
the Fund may be registered in the name of the Fund, PFPC
Trust, the Book-Entry System, a sub-custodian, or any duly
appointed nominee of the Fund, PFPC Trust, Book-Entry System
or sub-custodian. The Fund reserves the right to instruct
PFPC Trust as to the method of registration and safekeeping
of the securities of the Fund. The Fund agrees to furnish to
PFPC Trust appropriate instruments to enable PFPC Trust to
hold or deliver in proper form for transfer, or to register
in the name of its nominee or in the name of the Book-Entry
System or in the name of another appropriate entity, any
securities which it may hold for the Accounts and which may
from time to time be registered in the name of the Fund.
(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 Fund, except in
accordance with Written Instructions. PFPC Trust, directly
or through the use of the Book-Entry System, shall execute
in blank and promptly deliver all notices, proxies and proxy
soliciting materials received by PFPC Trust as custodian of
the Property to the registered holder of 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 Fund.,
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
Fund of such receipt and credit such income, as
collected, to the Fund's custodian account;
(B) endorse and deposit for collection, in the name
of the Fund, checks, drafts, or other orders for
the payment of money;
(C) receive and hold for the account of the Fund all
securities received as a distribution on the
Fund'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 Fund and held by PFPC
Trust hereunder;
(D) present for payment and collect the amount
payable upon all securities which may mature or
be, on a mandatory basis, 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 Fund 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
Fund 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 Fund;
(2) collect interest and cash dividends received,
with notice to the Fund, to the account of the
Fund;
(3) hold for the account of the Fund 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 Fund 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 Fund's
name, on behalf of the Fund, on such
certificate as the owner of the securities
covered thereby, to the extent it may lawfully
do so.
(i) Segregated Accounts.
(i) 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 Fund.
Such accounts may be used to transfer cash and
securities, including securities in the Book-Entry System:
(A) for the purposes of compliance by the Fund with
the procedures required by a securities or
option exchange, providing such procedures
comply with the 1940 Act and any releases of
the SEC relating to the maintenance of
segregated accounts by registered investment
companies; and
(B) upon receipt of Written Instructions, for other
purposes.
(ii) PFPC Trust shall arrange for the establishment of XXX
custodian accounts for such shareholders holding
Shares through XXX accounts, in accordance with the
Fund's prospectuses, the Internal Revenue Code of
1986, as amended (including regulations promulgated
thereunder), and with such other procedures as are
mutually agreed upon from time to time by and among
the Fund, PFPC Trust and the Fund's transfer agent.
(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;
(vi) the Fund involved; and
(vii) 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
Fund pay out of the moneys held for the account of
the Fund 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 Fund upon such sale;
(vi) the name of the broker through whom or the person to
whom the sale was made;
(vii) the location to which the security must be delivered
and delivery deadline, if any; and
(viii) the Fund involved.
PFPC Trust shall deliver the securities upon receipt of the total
amount payable to the Fund 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 thereof, PFPC Trust may accept payment in such form as
shall be satisfactory to it, and may deliver securities and
arrange for payment in accordance with the customs prevailing
among dealers in securities.
(l) Reports; Proxy Materials.
(i) PFPC Trust shall furnish to the Fund the following
reports:
(A) such periodic and special reports as the Fund
may reasonably request;
(B) a monthly statement summarizing all transactions
and entries for the account of the Fund, listing
each Fund security belonging to the Fund 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 Fund including disbursements;
(C) the reports required to be furnished to the Fund
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 Fund and PFPC Trust.
(ii) PFPC Trust shall transmit promptly to the Fund any
proxy statement, proxy material, notice of a call or
conversion or similar communication received by it as
custodian of the Property. PFPC Trust shall be under
no other obligation to inform the Fund as to such
actions or events.
(m) Crediting of Accounts. If PFPC Trust in its sole discretion
credits the Fund 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 Fund. 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 Fund hereby grants a first priority
contractual possessory security interest in and a right of
setoff against the assets maintained in an Account hereunder
in the amount necessary to secure the return and payment to
PFPC Trust of any advance or credit made by PFPC Trust
(including charges related thereto) to such Account.
(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 Fund. If payment is not
received by PFPC Trust within a reasonable time after proper
demands have been made, PFPC Trust shall notify the Fund in
writing, including copies of all demand letters, any written
responses and memoranda of all oral responses and shall
await instructions from the Fund. 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 Fund as soon as reasonably practicable
whenever income due on securities is not collected in due
course and shall provide the Fund with periodic status
reports of such income collected after a reasonable time.
16. Duration and Termination. This Agreement shall continue until
terminated by the Fund or PFPC Trust on sixty (60) days' prior
written notice to the other party. In the event this Agreement is
terminated (pending appointment of a successor to PFPC Trust or vote
of the shareholders of the Fund 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 Fund to
the Fund. 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 Fund to
be held under terms similar to those of this Agreement. PFPC Trust
shall not be required to make any delivery or payment of assets upon
termination until full payment shall have been made to PFPC Trust of
all of its fees, compensation, costs and expenses (such expenses
include, without limitation, expenses associated with movement (or
duplication) of records and materials and conversion thereof to a
successor service provider, or to a bank or trust company pending
appointment of such successor, and all trailing expenses incurred by
PFPC Trust). PFPC Trust shall have a security interest in and shall
have a right of setoff against the Property as security for the
payment of such fees, compensation, costs and expenses.
17. Change of Control. Notwithstanding any other provision of this
Agreement, in the event of an agreement 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 Trust at 0000
Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, Attention: Xxx Xxxxxxxx; (b) if to the Fund, at 000 X. 00xx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx Xxxxxxxxx; or (c) if to
neither of the foregoing, at such other address as shall have been
given by like notice to the sender of any such notice or other
communication by the other party. If notice is sent by confirming
telegram, cable, telex or facsimile sending device, it shall be
deemed to have been given immediately. If notice is sent by
first-class mail, it shall be deemed to have been given five days
after it has been mailed. If notice is sent by messenger, it shall
be deemed to have been given on the day it is delivered.
19. Amendments. This Agreement, or any term hereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
20. Delegation; Assignment. PFPC Trust may assign its rights and
delegate its duties hereunder to any affiliate of PFPC Trust or of
The PNC Financial Services Group, Inc., provided that PFPC Trust
gives the Fund 30 days' prior written notice of such assignment or
delegation.
21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed 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 reasonably 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 Representations or Warranties. Except as expressly
provided in this Agreement, PFPC Trust 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
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 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 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) 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.
(f) 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.
(g) 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.
(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: _____________________
UST PRIVATE EQUITY INVESTORS FUND, INC.
By: _______________________
Title: _____________________
