CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of __________, 2000 by and between PFPC
TRUST COMPANY ("PFPC Trust"), and EXCELSIOR VENTURE INVESTORS III, LLC (the
"Fund").
W I T N E S S E T H:
WHEREAS, the Fund is a closed-end, non-diversified management
investment company registered 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 units of the Fund as defined in the
Fund's registration statement.
(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 notification of registration under
the 1940 Act on Form N8-A;
(c) a copy of the Fund's most recent effective registration
statement on Form N-2 under the 1933 Act and the 1940
Act, as filed with the SEC;
(d) a copy of the Fund's advisory agreements;
(e) a copy of the distribution/underwriting agreement with
respect to each class of Shares;
(f) a copy of the Fund's administration agreement;
(g) copies of any distribution and/or member servicing plans
and agreements made in respect of the Fund; 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 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 members, 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 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, gross
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, gross 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, gross 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 members, 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 members, or, in
lieu of paying the Fund's transfer agent, 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 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 approval of 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 approval of 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 members
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 members 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 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx X. Xxxx; 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 necessary to effectuate
the purposes hereof.
23. 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 TRUST COMPANY
By:
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Title:
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EXCELSIOR VENTURE INVESTORS III, LLC
By:
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Title:
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