Exhibit 99.j(1)
CUSTODIAN SERVICES AGREEMENT
THIS
AGREEMENT is made as of August 20, 2001 by and between PFPC TRUST COMPANY, a
limited purpose trust company incorporated under the laws of Delaware
("PFPC Trust"), and UBS PW EQUITY OPPORTUNITY FUND II, L.L.C., a
Delaware limited liability company (the "Fund").
W I T N E S S E T H:
WHEREAS,
the Fund is registered as a closed-end, management investment 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 person duly authorized by the
Fund's Board to give Oral Instructions and Written Instructions on behalf
of the Fund and listed on the Authorized Persons Appendix attached hereto and
made a part hereof, or any amendment thereto as may be received by PFPC. An
Authorized Person's scope of authority may be limited by the Fund by
setting forth such limitation in the Authorized Persons Appendix. |
|
(d) |
"Board" and "Members" shall have the same meanings as
set forth in the Fund's limited liability company agreement (the
"Limited Liability Company Agreement"). |
|
(e) |
"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. |
|
(f) |
"CEA" means the Commodities Exchange Act, as amended. |
|
(g) |
"Code" means the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder. |
|
(h) |
"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. |
|
(i) |
"PFPC Trust" means PFPC Trust or a subsidiary or affiliate of PFPC Trust Company. |
|
(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. |
|
(k) |
"SEC" means the Securities and Exchange Commission. |
|
(l) |
"Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act and the CEA. |
|
(m) |
"Shares" mean the interests of any series or class of the Fund. |
|
(n) |
"Written Instructions" mean written instructions signed by two
Authorized Persons and received by PFPC Trust. The instructions may be delivered
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, on behalf of each of its investment portfolios (each, a
"Portfolio"), 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) |
certified or authenticated copies of the resolutions of the Board, approving the
appointment of PFPC Trust or its affiliates to provide services; |
|
(b) |
a copy of the Fund's most recent effective registration statement; |
|
(c) |
a copy of the Limited Liability Company Agreement; |
|
(d) |
a copy of the distribution agreement with respect to the Shares; |
|
(e) |
a copy of each Portfolio's administration agreement if PFPC Trust is not
providing the Portfolio with such services; |
|
(f) |
copies of any shareholder servicing agreements made in respect of the Fund or a Portfolio; and |
|
(g) |
certified or authenticated copies of any and all amendments or supplements to the foregoing. |
| 4. |
Compliance with Laws. PFPC Trust undertakes to comply with all
applicable requirements of the Securities Laws and any laws, rules and
regulations of governmental authorities having jurisdiction with respect to the
duties to be performed by PFPC Trust hereunder. Except as specifically set forth
herein, PFPC Trust assumes no responsibility for such compliance by the Fund or
any Portfolio. |
| |
(a) |
Unless otherwise provided in this Agreement, PFPC Trust shall act only upon Oral
Instructions and Written Instructions. |
| |
(b) |
PFPC Trust shall be entitled to rely upon any Oral Instructions and Written
Instructions 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 Board, or the 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 same day that such Oral Instructions are received. The fact that
such confirming Written Instructions are not received by PFPC Trust in no way
shall invalidate the transactions or enforceability of the transactions
authorized by the 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 at its own cost from such 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, 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 provided that such counsel is selected
with reasonable care. In the event PFPC Trust so relies on the advice of
counsel, PFPC Trust remains liable for any action or omission on the part of
PFPC Trust which constitutes willful misfeasance, bad faith, negligence or
reckless disregard by PFPC Trust of any duties, obligations or responsibilities
set forth in this Agreement. |
| |
(d) |
Protection of PFPC Trust. PFPC Trust shall be protected in any action it
takes or does not take in reliance upon directions, advice or Oral Instructions
or Written Instructions it receives from the Fund or from counsel and which PFPC
Trust believes, in good faith, to be consistent with those directions, 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, advice or Oral Instructions or Written Instructions, or (ii) to act
in accordance with such directions, 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. Nothing in this subsection shall excuse PFPC Trust when an action or
omission on the part of PFPC Trust constitutes willful misfeasance, bad faith,
negligence or reckless disregard by PFPC Trust of any duties, obligations or
responsibilities set forth in this Agreement. |
| 7. |
Records; Visits. The books and records pertaining to the
Fund and any Portfolio, 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, preserved 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. PFPC Trust agrees to keep confidential all
records of the Fund and information relating to the Fund and its Members, unless
the release of such records or information is otherwise consented to, in
writing, by the Fund. The Fund agrees that such consent shall not be
unreasonably withheld and may not be withheld where PFPC Trust may be exposed to
civil or criminal contempt proceedings or when required to divulge such
information or records to duly constituted authorities. |
| 9. |
Cooperation with Accountants. PFPC Trust shall cooperate
with the Fund's independent public accountants and shall take all
reasonable action in the performance of its obligations under this Agreement to
ensure that the necessary information is made available to such accountants for
the expression of their opinion, as required by the Fund. |
| 10. |
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, at no additional expense to the Fund, shall 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, on behalf of
each of the Portfolios, 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. |
| 13. |
Indemnification. (a) The Fund, on behalf of each Portfolio,
agrees to indemnify and hold harmless PFPC Trust and its affiliates from all
taxes, charges, expenses, assessments, claims and liabilities (including,
without limitation, liabilities arising under the Securities Laws and any state
and foreign securities and blue sky laws, and amendments thereto) and expenses,
including (without limitation) reasonable attorneys' fees and
disbursements, (collectively, "Losses") arising directly or indirectly
from any action or omission to act which PFPC Trust takes (i) at the request or
on the direction of or in reliance on the advice of the Fund or (ii) upon Oral
Instructions or Written Instructions. Neither PFPC Trust, nor any of its
affiliates, shall be indemnified against any liability (or any expenses incident
to such liability) arising out of PFPC Trust's or its affiliates' own
willful misfeasance, bad faith, negligence or reckless disregard of its duties
under this Agreement. |
| |
(b) |
Notwithstanding anything in this Agreement to the contrary, neither the Fund nor
any Portfolio shall be liable to PFPC Trust or its affiliates for any
consequential, special or indirect losses or damages which PFPC Trust or its
affiliates may incur or suffer, whether or not the likelihood of such losses or
damages was known by the Fund. |
| 14. |
Responsibility of PFPC Trust. |
| |
(a) |
PFPC Trust shall be under no duty to take any action on behalf of the Fund or
any Portfolio except as specifically set forth herein or as may be
specifically agreed to by PFPC Trust in writing. PFPC Trust shall be obligated
to exercise care and diligence in the performance of its duties hereunder, to
act in good faith and to use its best efforts, within reasonable limits, in
performing services provided for under this Agreement. PFPC Trust agrees to
indemnify and hold harmless the Fund from Losses 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 under any duty or obligation to
inquire into and shall not be liable for (A) the validity or invalidity or
authority or lack thereof of any Oral Instruction or Written Instruction, notice
or other instrument which conforms to the applicable requirements of this
Agreement, and which PFPC Trust reasonably believes to be genuine; or (B)
subject to Section 10 of this Agreement, delays or errors or loss of data
occurring by reason of circumstances beyond PFPC Trust's control, including
acts of civil or military authority, national emergencies, fire, flood,
catastrophe, acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply. |
| |
(c) |
Notwithstanding anything in this Agreement to the contrary, neither PFPC Trust
nor its affiliates shall be liable to the Fund or to any Portfolio for any
consequential, special or indirect losses or damages which the Fund may incur or
suffer by or as a consequence of PFPC Trust's or its affiliates'
performance of the services provided hereunder, whether or not the likelihood of
such losses or damages was known by PFPC Trust or its affiliates. |
| 15. |
Description of Services. |
| |
(a) |
Delivery of the Property. The Fund will deliver or arrange for delivery
to PFPC Trust, all of the Property owned by the Portfolios, including cash
received as a result of the distribution of Shares, during the period that is
set forth in 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 each separate Portfolio of 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 each
separate Portfolio. PFPC Trust shall make cash payments from or for the Accounts
of a Portfolio only for: |
| |
(i) |
purchases of securities in the name of a Portfolio or PFPC Trust or PFPC
Trust's nominee as provided in sub-section (j) of this Section 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 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 a Portfolio; |
| |
(iv) |
payment to, subject to Written Instructions, the Members of an amount equal to
the amount of dividends and distributions stated in the Written Instructions to
be distributed in cash; |
| |
(v) |
payments, upon 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) |
payments, upon Written Instructions, made for other proper Fund
purposes. |
| |
PFPC Trust hereby is 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 and upon Written Instructions, accompanied by a certified
resolution of the Board, authorizing the transaction. In no case may any member
of the Board, 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 United States banks or trust companies
to perform duties described in this sub-section (c). 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 the 1940 Act and
other applicable rules and regulations. Any such arrangement will not be entered
into without prior written notice to the Fund. |
| |
PFPC Trust shall remain responsible for the
performance of all of its duties as described in this Agreement and shall hold
the Fund and each Portfolio 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 a Portfolio 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 a Portfolio 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; provided that, in any
such case, the cash or other consideration is to be delivered to PFPC Trust; |
| |
(iv) |
deliver any securities held for a Portfolio 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 a Portfolio 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 Portfolios 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 a Portfolio to any bank or trust company for the
purpose of a pledge or hypothecation to secure any loan incurred by the Fund on
behalf of that Portfolio; 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 a Portfolio 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 owned by the Fund for the purpose of redeeming in
kind shares of the Fund upon delivery thereof to PFPC Trust; and |
| |
(xi) |
release and deliver or exchange securities owned by the Fund for other corporate 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 this sub-section d. |
| |
(e) |
Use of Book-Entry System. The Fund shall deliver to PFPC Trust certified
resolutions of the Board approving, authorizing and instructing PFPC Trust on a
continuous basis, to deposit in the Book-Entry System all securities belonging
to the Portfolios 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 Portfolios, 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 each Portfolio which are maintained in the
Book-Entry System, the records of PFPC Trust shall identify by book-entry or
otherwise those securities belonging to each Portfolio. PFPC Trust shall furnish
to the Fund a detailed statement of the Property held for each Portfolio under
this Agreement at least monthly and from time to time and upon written request. |
| |
(ii) |
Securities and any cash of each Portfolio 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 and its sub-custodian, if any,
will pay out money only upon receipt of securities and will deliver securities
only upon the receipt of money. |
| |
(iii) |
All books and records maintained by PFPC Trust which relate to the Fund's
participation in the Book-Entry System will be open to the inspection of
Authorized Persons at all times during PFPC Trust's regular business hours,
and PFPC Trust will furnish to the Fund all information in respect of the
services rendered as it may require. |
| |
PFPC Trust will also 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 a Portfolio 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 a Portfolio may be registered in the name of the Fund on
behalf of that Portfolio, PFPC Trust, the Book-Entry System, a sub-custodian, or
any duly appointed nominees 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, any securities which it may
hold for the Accounts and which may be registered from time to time in the name
of the Fund on behalf of a Portfolio. |
| |
(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 a
Portfolio, 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 to the registered
holder of such securities. If the registered holder is not the Fund on behalf of
a Portfolio, then Written Instructions or Oral Instructions must designate the
person who owns 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 each Portfolio, all income, dividends,
distributions, coupons, option premiums, other payments and similar items,
included or to be included in the Property, and promptly advise each Portfolio
of such receipt and credit such income, as collected, to each Portfolio'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 each Portfolio all securities received as a
distribution on the Portfolio'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 a Portfolio and held by PFPC Trust
hereunder; |
| |
(D) |
present for payment and collect the amount payable upon all securities which may
mature or be 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) |
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 a Portfolio 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 on behalf of a Portfolio or
PFPC Trust or nominee of either, 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 each
Portfolio; |
| |
(2) |
collect interest and cash dividends received, with notice to the Fund, to the
account of each Portfolio; |
| |
(3) |
hold for the account of each Portfolio 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 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 a Portfolio, on such certificate as the owner
of the securities covered thereby, to the extent it may lawfully do so. |
| |
(i) |
PFPC Trust upon receipt of Written Instructions or Oral Instructions, shall
establish and maintain segregated accounts on its records for and on behalf of
each Portfolio. 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 proper corporate
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 then current prospectus and statement of additional information, the
Code and such other procedures as are mutually agreed upon from time to time by
and between the Fund and PFPC Trust. |
| |
(j) |
Purchases of Securities. PFPC Trust shall settle purchased securities
upon receipt of Oral Instructions or Written Instructions from the Fund or its
investment advisers 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 Portfolio involved; and |
| |
(vii) |
the name of the person from whom or the broker through whom the purchase was
made. PFPC Trust, upon receipt of securities purchased by or for a Portfolio,
shall pay out of the moneys held for the account of the Portfolio 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 from the Fund 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 Portfolio involved. |
PFPC
Trust shall deliver the securities upon receipt of the total amount payable to
the Portfolio upon such sale, provided that the total amount payable is the same
as was set forth in the Oral Instructions or Written Instructions. Subject to
the foregoing, 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
each Portfolio, listing each Portfolio securities belonging to each Portfolio
with the adjusted average cost of each issue and the market value at the end of
such month and stating the cash account of each Portfolio including
disbursements; |
| |
(C) |
the reports required to be furnished to the Fund pursuant to Rule 17f-4 under 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 an
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 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, 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 also shall 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 by PFPC Trust on ninety (90) 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 Portfolios 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
such delivery or payment until full payment shall have been made to PFPC Trust
of all of its fees, compensation, costs and expenses attributable to the
relevant Portfolio(s). PFPC Trust shall have a security interest in and shall
have a right of setoff against the Property of such Portfolio(s) as security for
the payment of such fees, compensation, costs and expenses. |
| 17. |
Notices. All notices and other
communications, including Written Instructions, shall be in writing or by
confirming telegram, cable, telex or facsimile sending device. Notice shall be
addressed (a) if to PFPC Trust, at Airport Business Center, 000 Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxx 00000 (b) if to the Fund, at 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxx X. Xxxxxxxxx, Esq., 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. |
| 18. |
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. |
| 19. |
Delegation; Assignment. PFPC Trust may
assign its rights and delegate its duties hereunder to any affiliate (as defined
in the 0000 Xxx) of PFPC Trust, or PNC Bank Corp., provided that (i) PFPC Trust
gives the Fund thirty (30) days' prior written notice; (ii) the delegate (or
assignee) agrees with PFPC Trust and the Fund to comply with all relevant
provisions of the Securities Laws; and (iii) PFPC Trust and such delegate (or
assignee) promptly provide such information as the Fund may request, and respond
to such questions as the Fund may ask, relative to the delegation (or
assignment), including (without limitation) the capabilities of the delegate (or
assignee). |
| 20. |
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. |
| 21. |
Further Actions. Each party agrees to perform such further acts and execute such
further documents as are necessary to effectuate the purposes hereof. |
| |
(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 and Oral Instructions. |
| |
(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) |
Governing Law. This Agreement shall be deemed to be a contract made in
Pennsylvania and governed by Pennsylvania law, without regard to principles of
conflicts of law. |
| |
(d) |
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. |
| |
(e) |
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. |
| |
(f) |
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:____________________
UBS PW EQUITY OPPORTUNITY FUND II, L.L.C.
By: /s/ Xxxxx Xxxxxx
Title:Authorized Person
|
AUTHORIZED PERSONS APPENDIX
NAME (Type)
________________________
________________________
________________________
________________________
________________________
________________________ |
SIGNATURE
________________________
________________________
________________________
________________________
________________________
________________________ |
