CUSTODIAN SERVICES AGREEMENT
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THIS AGREEMENT is made as of March 13, 2003 by and between PFPC TRUST
COMPANY ("PFPC Trust"), and EXCELSIOR BUYOUT INVESTORS, LLC (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is a closed-end, non-diversified management investment
company 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
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 Appendix (as
the same may be revised by the Fund upon reasonable prior notice to
PFPC Trust 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.
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(d) "Book-Entry System" means Federal Reserve Treasury book-entry system
for United States and federal agency securities, its successor or
successors, and its or nominees and any book-entry system
maintained by an exchange registered with the SEC under the 1934 Act.
(e) "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 who is listed on the Authorized
Persons. Oral Instructions shall include any e-mail communication sent
by an Authorized Person and received and opened by PFPC.
(f) "PFPC Trust" means PFPC Trust Company or a subsidiary or affiliate of
PFPC Trust Company.
(g) "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.
(h) "SEC" means the Securities and Exchange Commission.
(i) "Securities Laws" mean the 1933 Act, the 1934 Act and the 1940 Act.
(j) "Units" means the membership interests in the Fund as defined in the
Fund's registration statement.
(k) "Written Instructions" mean (i) written instructions signed by two
Authorized
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Persons or persons reasonably believed by PFPC to be Authorized
Persons who are listed on the then current Authorized Persons Appendix
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, 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 mamagers, 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 most recent effective registration statement;
(d) a copy of the Fund's advisory agreement;
(e) a copy of the distribution/underwriting agreement with respect to
each class of Units;
(f) a copy of the Fund's administration agreement;
(g) copies of any distribution and/or member servicing plans and
agreements made in respect of the Fund; and
(h) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
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4. Compliance with Laws.
PFPC Trust undertakes to comply with 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 Trust with respect to the
Fund as are reasonably requested of PFPC by the Fund and as are acceptable
to PFPC Trust (such acceptance by PFPC Trust not to be unreasonably
withheld). Except as stated herein, PFPC Trust assumes no responsibility
for compliance by the Fund or any other entity with respect to any
requirements applicable to 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
who is listed on the then current Authorized Persons Appendix)
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
managers or of the Fund's members, unless and until PFPC Trust
receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Trust Written Instructions
confirming Oral Instructions (except where such Oral Instructions are
given by PFPC Trust or its affiliates) so that PFPC Trust receives
the Written Instructions by the close of business on the day after
such Oral Instructions are received. The fact that such
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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. PFPC Trust 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 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 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). If PFPC Trust requests advice with respect
to the Fund from counsel to the Fund, it will inform the Fund of that
fact.
(b) Protection of PFPC Trust. Without limiting PFPC Trust's other
protections under this Agreement, 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
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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
books and records pertaining to the Fund (provided the same are in PFPC
Trust's possession) shall be provided by PFPC Trust to the Fund or to an
Authorized Person of the Fund, at the Fund's expense; provided that upon
termination of this Agreement with respect to the Fund, the original
records of the Fund shall be delivered to the successor custodian, at the
Fund's reasonable expense. Following termination of this Agreement, PFPC
Trust may maintain a copy of the records of such Fund at its own 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
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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 required to be released in connection with the
services provided 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 Trust 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 Trust 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 Trust represents, covenants, and warrants that PFPC Trust will
use Customer
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Information only in compliance with: (a) this Agreement; (b) any Fund
privacy policies provided to PFPC Trust and accepted by PFPC Trust; 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 Trust no longer needs
to retain such Customer Information in order to perform its duties under
this Agreement, PFPC Trust 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 Trust 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
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. 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 owned or licensed and 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
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System Elements are incorporated in any work product produced for the
Fund, PFPC Trust hereby grants a non-exclusive, royalty-free and
non-transferable license to use the PFPC System Elements in the form
provided to the Fund.
11. Disaster Recovery. PFPC Trust shall enter into and shall maintain in
effect with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to
the extent appropriate equipment is available. In the event of equipment
failures, PFPC Trust shall, at no additional expense to the Fund, take
reasonable steps to minimize service interruptions.
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) (collectively "Losses")
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 and
held harmless against any Losses caused by PFPC Trust's or its affiliates'
own willful misfeasance, bad faith, negligence or breach of its duties and
obligations under this Agreement.
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(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 Trust 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 of its duties and obligations
under this Agreement; (ii) willful misfeasance; (iii) bad faith; or
(iv) negligence.
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 stated herein or as may be agreed to by
PFPC Trust and the Fund in writing. PFPC Trust shall be obligated to
exercise reasonable care and reasonable diligence in the performance
of its duties and obligations hereunder 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 Trust's performance is in breach of its duties and
obligations with respect to the Fund under this Agreement.
(b) PFPC Trust, 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 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
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genuine. Notwithstanding anything in this Agreement to the contrary,
PFPC Trust shall not be liable for any Losses, delays or errors or
loss of data occurring by reason of circumstances beyond PFPC Trust'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, communication or
power supply. For clarity, the immediately preceding sentence shall
not obviate PFPC Trust's duties under Section 11 of this Agreement.
(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 Units, 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
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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 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 Units of the Fund delivered to
PFPC Trust;
(iii) payment of, subject to Written Instructions, interest, taxes,
administration, accounting, distribution, advisory,
management fees or similar expenses which are to be borne by
the Fund;
(iv) payment to, subject to receipt of Written Instructions, the
Fund's transfer agent, as agent for the members, of an amount
equal to the amount of dividends and distributions stated in
the Written Instructions to be distributed in cash by the
transfer agent to members, or, in lieu of paying the Fund's
transfer agent, PFPC Trust may arrange for the direct payment
of cash dividends and distributions to members in accordance
with procedures mutually agreed upon from time to time by and
among the Fund, PFPC Trust and the Fund's transfer agent.
(v) payments, upon receipt of Written Instructions, in connection
with the conversion, exchange or surrender of securities
owned or subscribed to by the Fund and held by or delivered
to PFPC Trust;
(vi) payments of the amounts of dividends received with respect to
securities sold short;
(vii) payments made to a sub-custodian pursuant to provisions in
sub-section (c) of this Section; and
(viii) other payments, upon Written Instructions.
PFPC Trust is hereby authorized to endorse and collect all checks, drafts
or other orders for the payment of money received as custodian for the
Accounts.
(c) Receipt of Securities; Subcustodians.
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(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 managers, 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
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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;
(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;
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(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 Units 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
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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.
(h) 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:
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(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
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number of bonds, certificates, or other evidence,
representing the same aggregate face amount or number
of units bearing the same interest rate, maturity date
and call provisions, if any; provided that, in any such
case, the new securities are to be delivered to PFPC
Trust.
(B) unless and until PFPC Trust receives Oral Instructions or
Written Instructions to the contrary, PFPC Trust shall:
(1) pay all income items held by it which call for payment
upon presentation and hold the cash received by it
upon such payment for the account of the Fund;
(2) collect interest and cash dividends received, with
notice to the Fund, to the account of the Fund;
(3) hold for the account of the Fund all stock dividends,
rights and similar securities issued with respect to
any securities held by PFPC Trust; and
(4) execute as agent on behalf of the Fund all necessary
ownership certificates required by the Internal
Revenue Code or the Income Tax Regulations of the
United States Treasury Department or under the laws of
any state now or hereafter in effect, inserting the
Fund's name, on behalf of the Fund, on such
certificate as the owner of the securities covered
thereby, to the extent it may lawfully do so.
(i) Segregated Accounts.
(i) PFPC Trust shall upon receipt of Written Instructions or Oral
Instructions establish and maintain segregated accounts on its
records for and on behalf of the Fund. Such accounts may be used
to transfer cash and securities, including securities in the
Book-Entry System:
(A) for the purposes of compliance by the Fund with the
procedures required by a securities or option exchange,
providing such procedures comply with the 1940 Act and any
releases of the SEC relating to the maintenance of
segregated accounts by registered investment companies; and
(B) upon receipt of Written Instructions, for other purposes.
(ii) PFPC Trust shall arrange for the establishment of XXX custodian
accounts for such members holding Units through XXX accounts,
in accordance
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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;
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(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
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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.
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(n) Collections. All collections of monies or other property in respect,
or which are to become part, of the Property (but not the safekeeping
thereof upon receipt by PFPC Trust) shall be at the sole risk of the
Fund. If payment is not received by PFPC Trust within a reasonable
time after proper demands have been made, PFPC Trust shall notify the
Fund in writing, including copies of all demand letters, any written
responses and memoranda of all oral responses and shall await
instructions from the Fund. PFPC Trust shall not be obliged to take
legal action for collection unless and until reasonably indemnified
to its satisfaction. PFPC Trust shall also notify the Fund as soon as
reasonably practicable whenever income due on securities is not
collected in due course and shall provide the Fund with periodic
status reports of such income collected after a reasonable time.
16. Duration and Termination. This Agreement shall continue until terminated by
the Fund or PFPC Trust on sixty (60) days' prior written notice to the other
party. In the event this Agreement is terminated (pending appointment of a
successor to PFPC Trust or vote of the members of the Fund to dissolve or to
function without a custodian of its cash, securities or other property),
PFPC Trust shall not deliver cash, securities or other property of the Fund
to the Fund. It may deliver them to a bank or trust company of PFPC Trust's
choice, having an aggregate capital, surplus and undivided profits, as shown
by its last published report, of not less than twenty million dollars
($20,000,000), as a custodian for the Fund to be held under terms similar to
those of this Agreement. PFPC Trust shall not be required to make any
delivery or payment of assets upon termination until full payment shall have
been made to PFPC Trust of all of its fees, compensation, costs and expenses
(such expenses include, without limitation, expenses associated with
22
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. 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 Excelsior Buyout Investors,
LLC, c/o United States Trust Company, 000 Xxxx Xxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxx 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.
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 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.
20. Counterparts. This Agreement may be executed in two or more counterparts,
each of
23
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.
23. Miscellaneous.
(a) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements
and understandings relating to the subject matter hereof, provided
that the parties may embody in one or more separate documents their
agreement, if any, with respect to delegated duties.
(b) No Representations or Warranties. There are no oral or written
representations, agreements or understandings between PFPC Trust and
the Fund except as stated in this Agreement.
(c) 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.
(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
conflicts 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
24
the benefit of the parties hereto and their respective
successors and permitted assigns.
(g) 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 BUYOUT INVESTORS, LLC
By:
Title:
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