Exhibit (k)(2)
ADMINISTRATION, ACCOUNTING AND INVESTOR SERVICES AGREEMENT
THIS AGREEMENT is made as of May 31, 2001 by and between ALYESKA FUND,
L.L.C., a Delaware limited liability company (the "Company"), and PFPC INC., a
Massachusetts corporation ("PFPC").
W I T N E S S E T H :
WHEREAS, the Company is registered as a closed-end, non-diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Company wishes to retain PFPC to provide certain
administration, accounting and investor services provided for herein, and PFPC
wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Company and any other
person duly authorized by the Company's Board of Managers to give Oral
Instructions and Written Instructions on behalf of the Company 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 Company
by setting forth such limitation in the Authorized Persons Appendix.
(d) "Board of Managers" and "Members" shall have the same meanings as set
forth in the Company's Limited Liability Company Agreement.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "Oral Instructions" mean oral instructions received by PFPC from an
Authorized Person or from a person reasonably believed by PFPC to be
an Authorized Person.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(i) "Written Instructions" mean written instructions signed by an
Authorized Person and received by PFPC. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or facsimile
sending device.
2. APPOINTMENT. The Company hereby appoints PFPC to provide administration,
accounting and investor services to the Company, in accordance with the
terms set forth in this Agreement. PFPC accepts such appointment and agrees
to furnish such services.
3. DELIVERY OF DOCUMENTS. The Company has provided or, where applicable, will
provide PFPC with the following:
(a) certified or authenticated copies of the resolutions of the Company's
Board of Managers, approving the appointment of PFPC or its affiliates
to provide services and approving this Agreement;
(b) a copy of Company's most recent effective registration statement;
(c) a copy of the limited liability company agreement;
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(d) a copy of the Company's investment advisory agreement (pursuant to
which CIBC Xxxxxxxxxxx Advisers, L.L.C., as investment Adviser,
provides investment advice to the Company;
(e) a copy of any distribution agreement with respect to the Company;
(f) a copy of any additional administration agreements;
(h) a copy of any investor servicing agreement; and
(i) copies (certified or authenticated, where applicable) of any and all
amendments or supplements to the foregoing.
4. COMPLIANCE WITH RULES AND REGULATIONS.
PFPC undertakes to comply with the applicable requirements of the
Securities Laws, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be performed
by PFPC hereunder. Except as specifically set forth herein, PFPC assumes no
responsibility for such compliance by the Company or any other party.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Oral Instructions and Written Instructions, including standing Written
Instructions related to ongoing instructions received electronically.
(b) PFPC shall be entitled to rely upon any Oral and Written Instructions
it receives from an Authorized Person (or from a person reasonably
believed by PFPC to be an Authorized Person) pursuant to this
Agreement. PFPC may assume that any Oral or Written Instruction
received hereunder is not in any way inconsistent with the provisions
of organizational documents or this Agreement or of any vote,
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resolution or proceeding of the Company's Board of Managers or the
Company's Members, unless and until PFPC receives Written Instructions
to the contrary.
(c) The Company agrees to forward to PFPC Written Instructions confirming
Oral Instructions (except where such Oral Instructions are given by
PFPC or its affiliates) and shall endeavor to ensure that PFPC
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 shall in no
way 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 shall incur no liability to the Company in
acting upon such Oral or Written Instructions provided that PFPC's
actions comply with the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Company. If PFPC is in doubt as to any action it should
or should not take, PFPC may request directions or advice, including
Oral Instructions or Written Instructions, from the Company.
(b) Advice of Counsel. If PFPC shall be in doubt as to any question of law
pertaining to any action it should or should not take, PFPC may
request advice at its own cost from such counsel of its own choosing.
(c) Conflicting Advice. In the event of a conflict between directions,
advice or Oral Instructions or Written Instructions PFPC receives from
the Company, and the advice PFPC receives from counsel, PFPC may rely
upon and follow the advice
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of counsel. PFPC shall promptly inform the Company of such conflict
and PFPC shall refrain from acting in the event of a conflict unless
counsel advises PFPC that a failure to take action is likely to result
in additional loss, liability or expense. In the event PFPC relies on
the advice of counsel, PFPC remains liable for any action or omission
on the part of PFPC which constitutes willful misfeasance, bad faith,
gross negligence or reckless disregard by PFPC of any duties,
obligations or responsibilities set forth in this Agreement.
(d) Protection of PFPC. PFPC shall be protected in any action it takes or
does not take in reliance upon directions, advice or Oral Instructions
or Written Instructions it receives from the Company or (to the extent
permitted under clause (c) above) from counsel and which PFPC
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 (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's properly taking or not taking such action. Nothing in this
subsection shall excuse PFPC when an action or omission on the part of
PFPC constitutes willful misfeasance, bad faith, gross negligence or
reckless disregard by PFPC of any duties, obligations or
responsibilities set forth in this Agreement.
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7. RECORDS; VISITS.
(a) The books and records pertaining to the Company, which are in the
possession or under the control of PFPC shall be the property of the
Company. Such books and records shall be prepared and maintained as
required by the 1940 Act and other applicable securities laws, rules
and regulations. The Company and Authorized Persons shall have access
to such books and records at all times during PFPC's normal business
hours. Upon the reasonable request of the Company, copies of any such
books and records shall be provided by PFPC to the Company or to an
Authorized Person, at the Company's expense.
(b) PFPC shall keep the following records:
(i) all books and records with respect to the Company's books of
account;
(ii) records of the Company `s securities transactions; and
(iii) all other books and records as PFPC is required to maintain
pursuant to Rule 31a-1 of the 1940 Act in connection with the
services provided hereunder.
8. CONFIDENTIALITY. PFPC agrees to keep confidential all records of the
Company and information relating to the Company and its Members unless the
release of such records or information is otherwise consented to, in
writing, by the Company. The Company agrees that such consent shall not be
unreasonably withheld and may not be withheld where PFPC may be exposed to
civil or criminal contempt proceedings or when required to divulge such
information or records to duly constituted authorities.
9. LIAISON WITH ACCOUNTANTS. PFPC shall act as liaison with the Company's
independent public accountants and shall provide account analyses, fiscal
year summaries, and other audit-related schedules. PFPC shall take all
reasonable action in the performance of its duties under this Agreement to
assure that the necessary information is made available
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to such auditors and accountants in a timely fashion for the expression of
their opinion, as required by the Company.
10. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect with
appropriate parties one or more agreements making reasonable provisions for
emergency use of electronic data processing equipment to the extent
appropriate equipment is available. In the event of equipment failures,
PFPC shall, at no additional expense to the Company, take reasonable steps
to minimize service interruptions. PFPC 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's own
willful misfeasance, bad faith, gross negligence or reckless disregard of
its duties or obligations under this Agreement.
11. COMPENSATION. As compensation for services rendered by PFPC during the term
of this Agreement, the Company will pay to PFPC a fee or fees as may be
agreed to in writing by the Company and PFPC.
12. INDEMNIFICATION. The Company agrees to indemnify and hold harmless PFPC and
its affiliates from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, liabilities arising under the
Securities Laws and any state or foreign securities and blue sky laws, and
amendments thereto), and expenses, including (without limitation)
reasonable attorneys' fees and disbursements arising directly or indirectly
from any action or omission to act which PFPC takes (i) at the request or
on the direction of or in reliance on the advice of the Company or (ii)
upon Oral Instructions or Written Instructions; provided, however, neither
PFPC, nor any of its affiliates, shall be indemnified against any liability
(or any expenses incident to such liability) arising out of
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PFPC's or its affiliates own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties and obligations under this
Agreement.
13. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action on behalf of the
Company except as necessary to fulfill its duties and obligations as
specifically set forth herein or as may be specifically agreed to by
PFPC in writing. PFPC 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 shall be
liable for any damages arising out of PFPC's failure to perform its
duties under this Agreement to the extent such damages arise out of
PFPC's willful misfeasance, bad faith, gross negligence or reckless
disregard of such duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC shall not be liable for losses
beyond its control, provided that PFPC has acted in accordance with
the standard of care set forth above; and (ii) PFPC 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 reasonably believes to be genuine; or (B)
subject to Section 10, delays or errors or loss of data occurring by
reason of circumstances beyond PFPC's control, including acts of civil
or military authority, national emergencies, labor difficulties, fire,
flood, catastrophe, acts of God, insurrection, war, riots or failure
of the mails, transportation, communication or power supply.
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(c) Notwithstanding anything in this Agreement to the contrary, neither
PFPC nor its affiliates shall be liable to the Company for any
consequential, special or indirect losses or damages which the Company
may incur or suffer by or as a consequence of PFPC's or any
affiliates' performance of the services provided hereunder, whether or
not the likelihood of such losses or damages was known by PFPC or its
affiliates.
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following accounting services:
(i) Journalize investment, capital and income and expense activities;
(ii) Verify investment buy/sell trade tickets when received from the
investment adviser for the Company ("Adviser") in accordance with
PFPC's written procedures;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Record and reconcile corporate action activity and all other capital
changes with the Company's Adviser;
(vi) Reconcile cash and investment balances of the Company with the
custodian, and provide the Adviser with the beginning cash balance
available for investment purposes.
(vii) Update the cash availability throughout the day as required by the
Adviser, including details of cash movements related to securities and
payment of Company expenses;
(viii) Calculate contractual expenses (e.g. advisory and custody fees) in
accordance with the Company's Confidential Memorandum;
(ix) Maintain expense budget for the Company and notify an officer of the
Company of any proposed adjustments;
(x) Control all disbursements and authorize such disbursements from the
Company's account at PNC Bank, Delaware upon Written Instructions;
(xi) Calculate capital gains and losses;
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(xii) Determine net income;
(xiii) Determine applicable foreign exchange gains and losses on payables
and receivables;
(xiv) Interface with global custodian to monitor collection of tax
reclaims;
(xv) Transmit or otherwise send a copy of the daily portfolio valuation to
the Adviser;
(xvi) Compute net asset values monthly;
(xvii) Research and recommend portfolio accounting tax treatment for unique
security types;
(xviii) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average
dollar-weighted maturity in accordance with applicable regulations;
(xix) Prepare a monthly financial statement using PFPC's standard format,
if requested by the Board of Managers;
(xx) Assist with the annual audit of the Company's financial statements;
and
(xxi) Such other services as the parties agree in writing.
15. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following administration services:
(i) Prepare quarterly broker security transactions summaries including
principal and agency transactions and related commissions;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary portfolio and Company statistical
data as requested on an ongoing basis;
(iv) Provide to the extent contained in accounting records materials
required for board reporting as may be requested from time to time;
(v) Prepare for execution and file the Company's Federal Form 1065 and
state tax returns;
(vi) Prepare and file the Company's Annual and Semi-Annual Reports with the
SEC on Form N-SAR via XXXXX;
(vii) Prepare and coordinate printing of and the filing with the SEC via
XXXXX of the Company's annual and semi-annual shareholder reports;
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(viii) Assist in the preparation of registration statements;
(ix) Transmit or otherwise send, to the extent practicable and feasible,
requested detailed information related to the Members, including
admission details, income, capital gains and losses, and performance
detail;
(x) Mail Company offering materials to prospective investors;
(xi) Mail quarterly reports of the Adviser and Semi-Annual Financial
Statements to investors as well as any other necessary correspondence;
(xii) Copy the Board of Managers on routine correspondence sent to Members;
(xiii) Coordinate contractual relationships and communications between the
Company and its contractual service providers;
(xiv) Maintain certain bank accounts of the Company which are authorized by
the Company and agreed to by PFPC; and
(xv) Provide standard materials in connection with quarterly meetings of
the Company's Board of Managers.
16. DESCRIPTION OF INVESTOR SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following functions:
(i) Maintain the register of Members of the Company and enter on such
register all issues, transfers and repurchases of interests in the
Company;
(ii) Arrange for the calculation of the issue and repurchase prices of
interests in the Company in accordance with the Limited Liability
Company Agreement and the Company's Confidential Memorandum;
(iii) Allocate income, expenses, gains and losses to individual Members'
capital accounts in accordance with applicable tax laws and with the
Company's Confidential Memorandum;
(iv) Calculate the Incentive Allocation in accordance with the Company's
Confidential Memorandum and reallocate corresponding amounts from the
applicable Members' accounts to the Special Advisory Account;
(v) Mail to Members annual Form K-1's in accordance with applicable tax
regulations;
(vi) Mail tender offers to Members for purposes of executing repurchases;
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(vii) Retain Share Registers and transfer forms for a period of at least
six years from the time of execution;
(viii) Maintain and tabulate information regarding Company votes;
(ix) Transmit to CIBC World Markets Corp. the investor data for inclusion
in monthly investor brokerage statements to be prepared by CIBC World
Markets Corp., as agreed upon by the Company and PFPC;
(x) Mail, as applicable, quarterly reports of the Adviser as requested by
the Board of Managers to investors, as well as other correspondence
reasonably requested by the Board of Managers;
(xi) Transmit or otherwise send, to the extent practicable and feasible,
requested detailed information related to the Members, including
admission details, income, capital gains and losses, and performance
detail; and
(xii) Mail Company offering materials to prospective investors in
accordance with instructions from an Authorized Person.
17. DURATION AND TERMINATION. This Agreement shall continue until terminated by
either party upon sixty (60) days' written notice to the other party.
18. NOTICES. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable, telex
or facsimile sending device. 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 three 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. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attn.: Xxx Xxxxxxx; (b) if to the
Company, at c/o CIBC World Markets Corp., One World Financial Center, 000
Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxxx X. Xxxxxx; or
(c) if to neither of the foregoing, at such other address as shall have
been provided by like notice to the sender of any such notice or other
communication by the other party.
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19. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
20. DELEGATION; ASSIGNMENT. This Agreement and the rights and duties of the
parties herein may not be assigned; provided, however, that PFPC may assign
its rights and delegate its duties hereunder at no additional cost to the
Company to any affiliate of or any majority-owned direct or indirect
subsidiary of PFPC or of The PNC Financial Services Group, Inc. provided
that (i) PFPC gives the Company sixty (60) days' prior written notice of
such assignment or delegation; (ii) the assignee or delegate agrees to
comply with the relevant provisions of the Securities Laws; and (iii) PFPC
and such assignee or delegate promptly provide such information as the
Company may request, and respond to such questions as the Company may ask,
relative to the assignment or delegation, (including, without limitation)
the capabilities of the assignee or delegate. Except as stated above, this
Agreement may not be assigned or delegated by any party without the written
consent of each party.
21. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
22. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
23. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements
and
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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
Delaware and governed by Delaware 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) Successor 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By: ______________________
Title: _____________________
ALYESKA FUND, L.L.C.
By: /s/ XXXXXX X. XXXXXX
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Title: Principal Manager
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AUTHORIZED PERSONS APPENDIX
NAME (Type) SIGNATURE
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