ADMINISTRATION, ACCOUNTING AND INVESTOR SERVICES AGREEMENT
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THIS AGREEMENT is made as of March 13, 2003 by and between Excelsior
Buyout Investors, LLC (the "Fund") and PFPC INC. ("PFPC").
W I T N E S S E T H :
WHEREAS, the Fund is a closed-end, non-diversified management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain PFPC to provide certain
administration, accounting and investor services provided for herein, and PFPC
wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and the 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 managers to give Oral
Instructions and Written Instructions on behalf of the Fund. Such
persons are listed in the Certificate attached hereto as the
Authorized Persons Appendex (as the same may be revised by the Fund
upon reasonable prior notice to PFPC from time to time). 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) "Member" shall have the same meaning given such term in the LLC
Agreement (as hereinafter defined).
(e) "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 who is listed on the then current Authorized
Persons Appendix. Oral Instructions shall
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include any e-mail communication sent by an Authorized Person and
received and opened by PFPC.
(f) Organizational Documents" means the Fund's LLC Operating Agreement
("LLC Agreement") and registration statement.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" means the 1933 Act, the 1934 Act and the 1940 Act.
(i) "Written Instructions" means (i) written instructions signed by an
Authorized Person or a person reasonably believed by PFPC to be an
Authorized Person who is listed on the then current Authorized
Persons Appendix 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, or facsimile sending device.
2. Appointment. The Fund hereby appoints PFPC to provide administration,
accounting and investor services 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) at PFPC's request, certified or authenticated copies of the
resolutions of the Fund's managers, approving the appointment of
PFPC or its affiliates to provide services and approving this
Agreement;
(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 most recent effective registration statement on
Form N-2 under the 1933 Act, as filed with the SEC;
(d) a copy of all of the Fund's Organizational Documents;
(e) a copy of any distribution agreement with respect to the Fund;
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(f) a copy of the Fund's advisory agreement or agreements;
(g) a copy of any additional administration agreement with respect to
the Fund;
(h) a copy of any investor servicing agreement made with respect to the
Fund; and
(i) 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
the applicable requirements of the Securities Laws and with the
requirements of such other laws that are applicable to the duties to be
performed by PFPC hereunder as are reasonably requested of PFPC by the
Fund and as are acceptable to PFPC (such acceptance by PFPC not to be
unreasonably withheld). 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 Instructions or Written
Instructions it receives from an Authorized Person (or from a person
reasonably believed by PFPC to be an Authorized Person who is listed
on the then current Authorized Persons Appendix) 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 the Organizational Documents or this Agreement or
of any vote, resolution or proceeding of the Fund's managers or
Members, 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
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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. PFPC shall promptly notify the
Fund of any differences between the Oral Instructions and the
confirming Written Instructions. Where Oral Instructions or Written
Instructions reasonably appear to have been received from an
Authorized Person who is listed on the then current Authorized
Persons Appendix, 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 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). If PFPC requests
advice with respect to the Fund from counsel for the Fund, it will
inform the Fund of that fact.
(b) Protection of PFPC. Without limiting PFPC's other protections under
this Agreement, 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 Fund counsel
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
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provisions of this Agreement, the same is a condition of PFPC's
properly taking or not taking such action.
7. Records; Visits.
(a) 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. 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; provided that upon
termination of this Agreement the original records of the Fund still
under the control of PFPC shall be delivered to the successor fund
administrator, at the Fund's reasonable expense. Following the
termination of this Agreement, PFPC may maintain a copy of the
records of the Fund at its own expense. Any such books and records
may be maintained in the form of electronic media and stored on any
magnetic disk or tape or similar recording method.
(b) PFPC shall keep the following records:
(i) all books and records with respect to the Fund's books of
account; and
(ii) records of the Fund's securities transactions.
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
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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 required to be released in connection with
the provision of services under this Agreement; (g) is relevant to the
defense of any claim or cause of action asserted against the receiving
party; or (h) has been or is independently developed or obtained by the
receiving party.
PFPC will not gather, store, or use any Customer Information (as
defined below), and will not disclose, distribute, sell, share, rent or
otherwise transfer any Customer Information to any third party, except
as provided in this Agreement or as PFPC may be directed in advance in
writing by the Fund or as required in connection with the provision of
services under this Agreement or as permitted or required by applicable
law. PFPC represents, covenants, and warrants that PFPC will use
Customer Information only in compliance with: (a) this Agreement; (b)
any Fund
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privacy policies provided to PFPC and accepted by PFPC; and (c) all
applicable laws, policies and regulations (including but not limited to
applicable laws, policies and regulations related to spamming, privacy,
and consumer protection). As soon as PFPC no longer needs to retain such
Customer Information in order to perform its duties under this
Agreement, PFPC will upon request promptly return or (if so instructed
by the Fund in writing) destroy all originals and copies of such
Customer Information, except to the extent PFPC is prohibited by law
from doing so. "Customer Information" means all intentionally or
unintentionally disclosed non-public personal information, however
collected, including without limitation, through "cookies", Web bugs or
non-electronic means, pertaining to or identifiable to a Customer (as
defined below), including without limitation name, address, e-mail
address, passwords, personal financial information, personal
preferences, demographic data, marketing data, data about securities
transactions, credit data, or any other identification data.
9. Liaison with Accountants. PFPC shall act as liaison with the Fund's
independent public accountants and shall provide account analyses,
fiscal year summaries, and other audit-related schedules with respect to
the Fund. PFPC shall take all reasonable action in the performance of
its duties under this Agreement to assure 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 owned
or licensed and utilized by PFPC in connection with the services
provided by PFPC to the Fund (collectively, "PFPC System Elements"). To
the extent that PFPC System Elements are incorporated into any work
product for the Fund, PFPC hereby
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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.
12. Compensation. As compensation for services set forth herein that are
rendered by PFPC during the term of this Agreement, the Fund will pay to
PFPC a fee or fees as may be agreed to in writing by the Fund and PFPC.
13. Indemnification.
(a) The Fund agrees to indemnify and hold harmless PFPC 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) (collectively "Losses")
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 and held
harmless against any Losses caused by PFPC's or its affiliates' willful
misfeasance, bad faith, negligence or breach 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.
(c) PFPC will indemnify and hold harmless the Fund from all Losses
incurred by the Fund to the extent (and only to the extent) that such
Losses arise out of PFPC's (i) breach
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of its duties and obligations under this Agreement; (ii) willful
misfeasance; (iii) bad faith; or (iv) negligence.
14. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action on behalf the Fund
except as stated herein or as may be agreed to by PFPC, in writing.
PFPC shall be obligated to exercise reasonable care and reasonable
diligence in the performance of its duties and obligations hereunder
(including the services set forth in Schedule B to this Agreement)
and to act in good faith in performing services provided for under
this Agreement. For purposes of indemnification under Section 13 of
this Agreement, the standards set forth in the prior sentence will
be used as the measurement of whether PFPC's performance is in
breach of its duties and obligations under this Agreement.
(b) PFPC, in connection with its duties under this Agreement, 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 or Written Instruction, notice or other instrument which
conforms to the applicable requirements of this Agreement, and which
PFPC reasonably believes to be genuine. Notwithstanding anything in
this Agreement to the contrary, PFPC shall not be liable for any
Losses, delays or errors or loss of data occurring by reason of
circumstances beyond PFPC's reasonable control, including without
limitation acts of civil or military authority, national
emergencies, labor difficulties, fire, flood or catastrophe, acts of
God, acts of terrorism, insurrection, war, riots or failure of the
mails, transportation,
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communication or power supply. For clarity, the immediately
preceding sentence shall not obviate PFPC's duties under Section 11
of this Agreement.
(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.
(e) Notwithstanding anything in this Agreement to the contrary, without
limiting anything in the immediately preceding sentence, Fund hereby
acknowledges and agrees that PFPC shall not be liable for any losses
or damages of any kind associated with any tax filings with which
PFPC has assisted in any way except to the extent such loss or
damage is substantially due to PFPC's negligence or willful
misconduct.
15. Description of Accounting Services on a Continuous Basis.
PFPC will perform the following accounting services if necessary with
respect to the Fund:
(i) Journalize investment, capital and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from the
investment adviser for the portfolio (the "Adviser") and
transmit trades to such portfolio's custodian(s) for proper
settlement;
(iii) Maintain individual ledgers for investment funds and/or
investment securities;
(iv) Maintain historical tax lots for each investment fund;
(v) Record and reconcile corporate action activity and all other
capital changes;
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(vi) Reconcile cash and investment balances of the Fund with the
Fund's custodian(s), and provide the Adviser with the beginning
cash balance available for investment purposes.
(vii) Update the cash availability throughout the day as required by
the Adviser;
(viii) Calculate contractual expenses, including management fees and
incentive allocation, as applicable, in accordance with the
Fund's investment advisory agreement;
(ix) Post to and prepare the Statement of Assets and Liabilities and
the Statement of Operations in U.S. dollar terms;
(x) Monitor the expense accruals and notify an officer of the Fund
of any proposed adjustments;
(xi) Control all disbursements and authorize such disbursements from
the Fund's account with the custodian(s) upon Written
Instructions;
(xii) Calculate capital gains and losses;
(xiii) Determine net income;
(xiv) Determine applicable foreign exchange gains and losses on
payables and receivables;
(xv) Obtain monthly security market quotes and currency exchange
rates from independent pricing sources approved by the Adviser,
or if such quotes are unavailable, then obtain such prices from
the Adviser, and in either case calculate the market value of
the Fund's investments in accordance with the applicable
valuation policies or guidelines provided by the Fund to PFPC
and acceptable to PFPC;
(xvi) Transmit or mail a copy of the monthly portfolio valuation to
the Adviser;
(xviii) Arrange for the computation of the net asset value in
accordance with the provisions of the Fund's registration
statement;
(xix) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average
dollar-weighted maturity; and
(xx) Prepare a monthly financial statement, which will include the
following
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items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Statement Schedule of Capital Gains and Losses
16. Description of Administration Services on a Continuous Basis. PFPC will
perform the following administration services if required with respect
to the Fund:
(i) Prepare periodic security transaction listings;
(ii) Supply various normal and customary Fund statistical data as
requested on an ongoing basis;
(iii) Prepare for execution and file the Fund's Federal tax returns
and state tax returns;
(iv) Coordinate contractual relationships and communications between
the Fund and its contractual service providers;
(iv) Coordinate the preparation of financial statements, schedules,
notes and related financial and supplementary data in
connection with the filing of the Fund's Annual and Semi-Annual
Reports;
(v) Prepare and file the Fund's annual and semi-annual reports with
the SEC on Form N-SAR;
(vi) Assist in preparation of registration statements;
(vi) Coordinate printing of the Fund's annual shareholder reports;
(vii) As mutually agreed upon by the parties hereto in separate
writing, perform such additional administrative duties relating
to the administration of the Fund as may be required for the
ongoing operation of the Fund in a manner consistent with the
requirements of the 1940 Act; and
(viii) As mutually agreed upon by the parties hereto in separate
writing, monitor and report on SEC, Internal Revenue Service
and general prospectus compliance.
17. Description of Investor Services on a Continuous Basis. PFPC will
perform the
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following functions if necessary:
(i) Maintain the register of Members and enter on such register all
issues, transfers and repurchases of interests in the Fund
(ii) Arrange for the calculation of the issue and repurchase prices
of interests in the Fund in accordance with the Fund's LLC
Agreement;
(iii) Allocate income, expenses, gains and losses to individual
Members' capital accounts in accordance with the Fund's LLC
Agreement;
(iv) Calculate the Incentive Allocation in accordance with the
Fund's LLC Agreement and reallocate corresponding amounts from
the applicable Members' accounts to the Adviser's account;
(v) Prepare and mail annually to each Member a Form K-1 in
accordance with applicable tax regulations; and
(vi) Mail Fund offering materials to prospective investors in
accordance with instructions from an Authorized Person.
18. 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 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.
19. Amendments. This Agreement, or any term thereof, may be changed or
waived only by 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 The PNC Financial Services Group, Inc., provided that PFPC gives
the Fund 30 days prior written notice
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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) 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.
(c) Notices. All instructions, notices and other communications
hereunder must be in writing and shall be deemed to have been duly
given if delivered by hand, facsimile or mailed by first class,
registered mail, return receipt requested, postage prepaid, and
addressed as follows:
If to the Company:
Excelsior Buyout Investors, LLC
x/x Xxxxxx Xxxxxx Trust Company
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
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If to PFPC:
PFPC Inc., Attn: President
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
(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 conflict 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. There are no oral or written
representations, agreements or understadings between PFPC and the
Fund except to the extent stated 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: ________________________________
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EXCELSIOR BUYOUT INVESTORS, LLC
By: ________________________________
Title: _______________________________
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