Exhibit 10.3
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CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of January 1, 2002 by and between PFPC TRUST
COMPANY ("PFPC Trust"), and EXCELSIOR PRIVATE EQUITY FUND II, 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 TRUST COMPANY
By: ________________________________
Title:______________________________
EXCELSIOR PRIVATE EQUITY FUND II, INC.
By: ________________________________
Title:______________________________
