Exhibit K
AMENDED AND RESTATED ADMINISTRATION, ACCOUNTING
AND INVESTOR SERVICES AGREEMENT
The Administration, Accounting and Investor Services Agreement made and
agreed to by and between GMAM ABSOLUTE RETURN STRATEGIES FUND, LLC (formerly
named GM Absolute Return Strategies Fund, LLC), a Delaware limited liability
company (the "Fund"), and PFPC INC., a Massachusetts corporation ("PFPC"), is
hereby amended and restated as of November 1, 2002 to read in its entirety as
follows:
W I T N E S S E T H:
WHEREAS, the Fund is registered or is in the process of registering as a
closed-end, non-diversified management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund wishes to retain PFPC to provide administration,
accounting and investor services provided for herein, and PFPC wishes to furnish
these services to the Fund.
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) "Authorized Person" means any person listed on the Authorized Persons
Appendix attached hereto and made a part hereof (as such Appendix may
be amended from time to time by the Manager, on behalf of the Fund, in
its sole discretion and upon three days' notice to PFPC; provided,
however, that the number of Authorized Persons may not exceed
fifteen). An Authorized Person's scope of authority may be limited by
setting forth the limitations in a written document signed by both
parties hereto.
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(b) "Interest", "Interest Percentages", "Manager", and "Member" shall have
the same meanings as set forth in the Fund's limited liability company
agreement (the "Limited Liability Company Agreement").
(c) "Organizational Documents" means, in the case of the Fund, the
Certificate of Formation of the Fund and the Limited Liability Company
Agreement.
(d) "SEC" means the Securities and Exchange Commission.
(e) "Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by PFPC or (ii) trade instructions
transmitted (and received by PFPC) by means of an electronic
transaction reporting system access to which requires use of a
password or other authorized identifier. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or facsimile
sending device.
2. Appointment. The Fund hereby appoints PFPC to provide administration,
accounting and investor services to the series listed on Exhibit A hereto (as
may be amended from time to time in accordance with Section 20 hereunder) in
accordance with the terms set forth in this Agreement. PFPC accepts this
appointment and agrees to furnish these services to the series.
3. Delivery of Documents.
(a) The Fund has provided or, where applicable, will provide PFPC with a
copy of the Fund's Organizational Documents and copies of any and all
amendments or supplements thereto.
(b) In the event that the Fund enters into or heretofore has entered into
one or more of the following agreements, it will promptly provide PFPC
with copies of the agreements and any and all amendments or
supplements thereto:
(i) any investment advisory agreement;
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(ii) any distribution/underwriting agreement; and
(iii) any additional administration agreement(s).
(c) In the event that an offering document or prospectus is used or
heretofore has been used to offer interests in the Fund to third party
investors, the Fund will provide PFPC with a copy of any such offering
documents or prospectus and any amendments and supplements thereto.
(d) a copy of the Fund's most recent effective registration statement on
Form N-2 under the 1940 Act, as filed with the SEC.
4. Compliance with Rules and Regulations.
PFPC undertakes to comply with the applicable requirements of any laws,
rules and regulations of governmental authorities having jurisdiction over
the Fund or its investment advisor or Manager 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 Fund or any other
entity. PFPC undertakes to render services hereunder in accordance with
generally accepted accounting principles ("GAAP").
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Written Instructions.
(b) PFPC shall be entitled to rely upon any Written Instruction 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 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 Fund's Manager or of the Fund's
Members, unless and until PFPC receives Written Instructions to the
contrary.
6. Right to Receive Advice.
(a) Advice of the Fund. If PFPC is in doubt as to any action it should or
should not take, PFPC may request directions or advice, including
Written Instructions, from the Fund.
(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 from counsel of its own choosing (who may be counsel
for the Fund, any Fund's investment adviser or PFPC, at the option of
PFPC).
(c) Conflicting Advice. In the event of a conflict between directions,
advice or Written Instructions PFPC receives from the Fund and the
advice PFPC receives from counsel, PFPC may reasonably rely upon and
follow the advice of counsel; provided that PFPC first notifies the
Fund of such conflict and makes a reasonable effort to reconcile such
conflicting advice, and further provided that, if after such
reconciliation effort, PFPC relies upon and follows the advice of
counsel and decides not to follow directions, advice or Written
Instructions received from the Fund, PFPC shall promptly inform the
Fund of its decision. Notwithstanding anything contained in the
immediately preceding sentence, in the event of such conflict, PFPC
may rely upon and follow the advice of counsel (without first
notifying the Fund and attempting a reconciliation) and as soon as
practicable thereafter notify the Fund of such decision in any event
where the circumstances make it inadvisable for PFPC to act within a
time frame conducive to first
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attempting any notification and reconciliation described.
7. Records; Visits.
(a) The books and records pertaining to the Fund which are in the
possession or under the control of PFPC shall be the property of the
Fund. PFPC shall maintain, on behalf of the Fund, without limitation,
the following records:
(i) all books and records with respect to the Fund's books of
account;
(ii) records of each portfolio's securities transactions;
(iii) records necessary to support the calculation of performance of
the Fund; and
(iv) copies of Written Instructions received by PFPC hereunder.
Any such books or records may be maintained in the form of electronic
media and stored on any magnetic disk or tape or similar recording
method in a manner not inconsistent with the electronic recordkeeping
rules promulgated by the SEC and other regulators having jurisdiction
over the Fund, or its Manager, as such rules may be amended or
supplemented from time to time (the "Electronic Recordkeeping Rules").
(b) The Fund and Authorized Persons shall have access to these books and
records at all times during PFPC's normal business hours. Upon the
reasonable request of the Fund, copies of any books and records shall
be provided by PFPC to the Fund or to an Authorized Person, at the
Fund's expense. In the event that the Fund believes that it will
require the original books and records for regulatory purposes or upon
termination of this Agreement, the Fund reserves the right to direct
PFPC to deliver to the Fund within five business days the original
books and records of
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the Fund or, if such books and records are maintained on electronic
media, a copy of electronic media, a printed version thereof and a
certification that the records have been maintained in accordance with
the Electronic Recordkeeping Rules, to the extent these rules are
applicable.
8. Confidentiality. Each party shall keep confidential any information
received in the course of satisfying obligations hereunder and relating to
the other party's business ("Confidential Information"), provided that
either party may share this information with any of its officers,
employees, directors, Managers, Members, agents, representatives and
affiliates, including any officer, employee, director or agent of the
Managers, (i) only to the extent necessary to conduct the business of the
fund or provide services hereunder and (ii) only if such recipient first
agrees to be (or already is) bound by the provisions of this Section 8.
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, the Manager, PFPC, or any of their respective
affiliates and the customers, clients and suppliers of any of them; (b) any
scientific or technical information, design, process, procedure, formula,
or improvement that is commercially valuable and secret in the sense that
its confidentiality affords the Fund, the Manager, PFPC or any of its
respective affiliates a competitive advantage over their 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,
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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); or (f) has
been or is independently developed or obtained by the receiving party.
9. Liaison with Accountants. PFPC shall act as liaison with the Fund's
independent public accountants and shall provide account analyses, fiscal
year summaries, and other audit-related schedules with respect to the Fund.
PFPC shall take all reasonable action in the performance of its duties
under this Agreement to assure that the necessary information is made
available to such accountants for the expression of their opinion, as
required by the Fund.
10. PFPC System. PFPC shall retain title to and ownership of any and all data
bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, patents, copyrights, trade secrets, and
other related legal rights belonging to PFPC and utilized by PFPC in
connection with the services provided by PFPC to the Fund.
11. Disaster Recovery. PFPC shall enter into and shall maintain in effect with
appropriate
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parties one or more agreements making reasonable provisions for emergency
use of electronic data processing equipment to the extent appropriate
equipment is available. In the event of equipment failures, PFPC shall, at
no additional expense to the Fund, take reasonable steps to minimize
service interruptions. 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.
12. Compensation. As compensation for services set forth herein that are
rendered by PFPC during the term of this Agreement, the Fund will pay to
PFPC a fee or fees as set forth in the fee letter attached hereto.
13. Indemnification.
(a) Each party ( the "Indemnifying Party") agrees to indemnify and hold
harmless the other party and its affiliates (including their
respective officers, directors, agents and employees and, with respect
to the Fund, the officers, directors, agents and employees of the
Managers, collectively, the "Indemnified Party") from all claims,
actions, obligations, damages, liabilities, judgements, settlements
and expenses (including, without limitation, reasonable attorneys'
fees and disbursements) (collectively, "Liabilities") arising directly
or indirectly from any act, omission or misrepresentation by the
Indemnifying Party in breach of any obligation, agreement,
representation or warranty by the Indemnifying Party or its affiliates
under this Agreement; provided that the Indemnifying Party will only
be obligated under this Section 13 to the extent that act, omission or
misrepresentation by the Indemnifying Party or its affiliates
constitutes gross negligence or willful misconduct by the Indemnifying
Party or its
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affiliates. Notwithstanding the foregoing, no Indemnified Party shall
be entitled to indemnification against any Liability (or any expenses
incident to such Liability) pursuant to this Section 13 to the extent
the Liability is caused directly or indirectly by the Indemnified
Party or its affiliates' own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties and obligations under
this Agreement.
(b) Notwithstanding the foregoing, the Indemnifying Party shall not be
responsible for indemnification relating to settlements entered into
by the Indemnified Party or its affiliates without the Indemnifying
Party's consent, which consent shall not be unreasonably withheld.
(c) Each party may bring action against the other to contribute to the
satisfaction of any liability under this Section 13 to the extent that
the liability its attributable to the culpable conduct of such party
(as defined in Section 13 (a)). In the event that an Indemnified Party
reasonably concluded that it has a conflict of interest with the
Indemnifying Party or any other party seeking indemnity under this
Section 13 with respect to the same matter, the Indemnified Party
shall be entitled to retain separate counsel reasonably acceptable to
the Indemnifying Party and the costs of the separate counsel shall be
subject to the indemnification provisions set forth in this Section
13.
(d) The foregoing rights of indemnification shall not limit any rights or
remedies which may be available to any person under applicable law,
including any right of action for breach of this Agreement, subject to
the provisions of Section 14 below; provided that, except as expressly
set forth in Section 13 (a) through (c), this Agreement is not
intended to be for the benefit of persons other than the parties
hereto.
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14. Duties and Exculpation.
(a) Neither party shall be under any duty hereunder to take any action
except as specifically set forth herein or as may be specifically
agreed to by the parties in a written amendment hereto. PFPC shall not
be liable to the Fund or the Manager for any action it takes or does
not take in reliance upon Written Instructions it receives from the
Fund. Notwithstanding the foregoing, PFPC shall be obligated to
exercise care and diligence in the performance of its duties hereunder
and to act in good faith in performing services provided for under
this Agreement. Neither party shall be liable for any damages arising
out of the party's failure to perform its duties under this Agreement
unless such failure constitutes gross negligence, willful misconduct
or a failure to act in good faith.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) neither party shall be liable for
losses beyond its control, including without limitation (subject to
Section 11), delays or errors or loss of data occurring by reason of
circumstances beyond such party's control, provided that such losses
are not the result of such party's gross negligence or willful
misconduct; and (ii) PFPC 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 Written Instruction, notice or other
instrument which conforms to the applicable requirements of this
Agreement, and which PFPC reasonably believes to be genuine.
(C) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NEITHER
PARTY NOR ITS AFFILIATES SHALL BE LIABLE FOR ANY CONSEQUENTIAL,
SPECIAL OR
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INDIRECT LOSSES OR DAMAGES, WHETHER OR NOT THE LIKELIHOOD OF SUCH
LOSSES OR DAMAGES WAS KNOWN BY SUCH PARTY OR ITS AFFILIATES.
(d) Each party shall undertake to mitigate damages for which the other
party may become responsible pursuant to Sections 13 or 14 of this
Agreement.
15. Description of Accounting Services on a Continuous Basis.
PFPC will perform the following accounting services if required with
respect to the Fund:
(i) Journalize investment, capital and income and expense activities;
(ii) Verify investment buy/sell trade tickets when received on behalf
of the Fund 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 Fund's Adviser or, if the Fund has not
retained an Adviser, the Manager;
(vi) Reconcile cash and investment balances of the Fund with the
custodian, and provide the Adviser or, if the Fund has not
retained an Adviser, the Manager with the beginning cash balance
available for investment purposes;
(vii) Calculate contractual expenses as instructed by the Manager. If
the instructions provided in the Fund's offering memorandum or
prospectus, if any, differs from the instructions of the Manager,
PFPC shall follow the instructions set forth in the offering
memorandum or prospectus;
(viii) Maintain expense budget for the Fund and notify the Manager of
any proposed adjustments;
(ix) Control all disbursements and authorize such disbursements from
the Fund's account at PNC Bank, Delaware upon Written
Instructions;
(x) Calculate capital gains and losses;
(xi) Determine net income;
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(xii) Determine applicable foreign exchange gains and losses on
payables and receivables;
(xiii) Transmit or otherwise send a copy of the monthly portfolio
valuation to the Adviser or, if the Fund has not retained an
Adviser, the Manager;
(xiv) Compute net asset values monthly;
(xv) As appropriate, compute total return and expense ratios;
(xvi) Prepare a monthly financial statement using PFPC's standard
format, if requested by the Manager;
(xvii) Assist with the annual audit of the Fund's financial
statements;
(xviii) Provide the Adviser, or, if the Fund has not retained an
Adviser, the Manager, with accounting information in an
electronic format which, to the extent reasonably feasible, is
consistent with the general ledger of General Motors Investment
Management Corporation, provided that the Fund has first
sufficiently detailed such form to PFPC; and
(xix) Such other services as the parties agree in writing.
16. Description of Administration Services on a Continuous Basis.
PFPC will perform the following administration services if required with
respect to the Fund:
(i) Prepare quarterly broker security transaction summaries including
principal and agency transactions and related commissions if
applicable;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary portfolio and Fund
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 on a timely basis, the Fund's
Federal Form 1065, state tax returns and IRS Form 5471, if
applicable;
(vi) Assist in the preparation of registration statements for
submission to the SEC;
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(vii) 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;
(viii) Mail Fund offering materials to prospective investors;
(ix) Mail any quarterly reports to the Adviser and Semi-Annual
Financial Statements to Members as well as any other necessary
correspondence to the extent pertaining to investment or other
related activities of the Fund;
(x) Coordinate the SEC filing of the Fund's Form N-SAR and annual and
semi-annual shareholder reports;
(xi) Copy the Manager on routine correspondence sent to Members;
(xii) Coordinate contractual relationships and communications between
the Fund and its contractual service providers;
(xiii) Maintain certain bank accounts of the Fund which are authorized
by the Fund and agreed to by PFPC;
(xiv) Draft agendas, resolutions and materials for regular and special
Board meetings and draft written consents of the Board;
(xv) Coordinate the preparation, assembly and mailing of materials for
all Board meetings;
(xvi) Attend Board meetings and draft minutes thereof;
(xvii) Maintain the Fund's corporate calendar to assure compliance
with various SEC and other filings and Board approval deadlines;
(xviii) Prepare and coordinate with the Fund's counsel Post-Effective
Amendments to the Fund's Registration Statement and coordinate
with the Fund's financial printer to file such Amendments with
the SEC;
(xix) Assist in the preparation of notices of Annual or Special
Meetings of Members and Proxy materials relating to such
meetings;
(xx) Assist in obtaining the fidelity bond and directors' and
officers'/errors and omissions insurance policies for the Fund in
accordance with the requirements of Rule 17g-1 and 17d-1(d)(7)
under the 1940 Act as such bond and policies are approved by the
Fund's Board of Managers;
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(xxi) Monitor the Fund's assets to assure adequate fidelity bond
coverage is maintained;
(xxii) Assist the Fund in the handling of SEC examinations and
responses thereto;
(xxiii) Mail to appropriate parties the personal securities
transaction quarterly reporting forms under the Fund's Code of
Ethics pursuant to Rule 17j-1 under the 1940 Act;
(xxiv) Maintain the Fund's files in accordance with 1940 Act
requirements;
(xxv) Communicate significant regulatory developments to the Fund, the
Board and the Fund's investment advisor on a quarterly basis; and
(xxvi) Such other services as the parties agree in writing.
17. Description of Investor Services on a Continuous Basis. PFPC will perform
the following functions:
(i) Maintain the register of Members of the Fund and enter on such
register all issues, transfers and repurchases of Interests in
the Fund or changes in the Investment Percentages;
(ii) Arrange for the calculation of the issue and repurchase prices of
Interests in the Fund and the recalculation of the Investment
Percentages in accordance with the Limited Liability Company
Agreement and the Fund's offering memorandum or prospectus, if
any;
(iii) Allocate income, expenses, gains and losses to individual
Members' capital accounts in accordance with the Limited
Liability Company Agreement and Fund's offering memorandum or
prospectus, if any;
(iv) Calculate the Incentive Allocation in accordance with the Fund's
offering memorandum or prospectus, if any, and reallocate
corresponding amounts from the applicable Members' accounts to
the Special Advisory Account;
(v) Prepare and mail annually to Members any required Form K-1 in
accordance with applicable tax regulations;
(vi) Mail tender offers to Members for purposes of executing
repurchases; and
(vii) Such other services as the parties agree in writing.
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18. Duration and Termination.
(a) (i) This Agreement shall continue until terminated by the Fund or by
PFPC on sixty (60) days' prior written notice to the other party. (ii)
The provisions of Section 16 (xiv) through Section 16 (xxv) may be
terminated by the Fund or by PFPC on sixty (60) days' prior written
notice to the other party. If the Fund or PFPC gives notice of
termination with respect only to Section 16 (xiv) through Section 16
(xxv), the provisions of each other Section of this Agreement shall
survive such termination.
(b) In the event the Fund gives notice of termination pursuant to Section
18 (a) (i) or 18 (a) (ii), all expenses associated with movement (or
duplication) of records and materials and conversion thereof to a
successor service provider (or each successor service provider, if
there are more than one), and all trailing expenses incurred by PFPC,
will be borne by the Fund, unless such termination is due to PFPC's
material breach of this Agreement.
(c) In the event PFPC gives notice of termination, all expenses associated
with movement (or duplication) of records and materials and conversion
thereof to a successor service provider (or each successor service
provider, if there are more than one), and all trailing expenses
incurred by the Fund, will be borne by PFPC, unless such termination
is due to the Fund's material breach of this Agreement.
(d) The provisions of Sections 7, 8, 13 and 14 of this Agreement shall
survive termination.
19. Notices. All notices and other communications, including Written
Instructions, shall be
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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
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. Notices
shall be addressed (a) if to PFPC, at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, XX
00000, Attention: Xxxx Xxxxxxx; (b) if to the Fund, to GMAM Absolute Return
Strategies Fund, LLC, c/o General Motors Investment Management Corporation,
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attn: Xxxx Xxxxxxxxx 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.
20. 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.
21 Delegation; Assignment. Neither party shall assign its rights or delegate
its duties hereunder without the prior written consent of the other party
except PFPC may assign its rights and delegate its duties hereunder to any
majority-owned direct or indirect subsidiary of PFPC or The PNC Financial
Services Group, Inc., provided that PFPC gives the Fund 30 days prior
written notice of such assignment or delegation.
22. 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.
23. Further Actions. Each party agrees to perform such further acts and execute
such further
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documents as are necessary to effectuate the purposes hereof.
24. Miscellaneous.
(a) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements
and understandings relating to the subject matter hereof, provided
that the parties may embody in one or more separate documents their
agreement, if any, with respect to delegated duties.
(b) No Changes that Materially Affect Obligations. The parties agree that
PFPC's duties and obligations hereunder will not be increased without
PFPC's consent. Notwithstanding the foregoing, the parties acknowledge
that, in the future, the Fund may be registered as an investment
company under the Investment Company Act of 1940 and the interests of
the Fund may be offered to third parties pursuant to private placement
transactions. The parties agree that the terms set forth in this
Agreement, including the exhibits and schedules hereto, contemplate
these events and that no consent of PFPC will be required for the
registration of the Fund or the distribution of interests therein.
(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
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invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(f) Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(g) No Representations or Warranties. Except as expressly provided in this
Agreement, each party hereby disclaims all representations and
warranties, express or implied, made to the other party or any other
person, including, without limitation, any warranties regarding
quality, suitability, merchantability, fitness for a particular
purpose or otherwise (irrespective of any course of dealing, custom or
usage of trade), of any services or any goods provided incidental to
services provided under this Agreement. PFPC disclaims any warranty of
title or non-infringement except as otherwise set forth in this
Agreement or in the Data Station Access Service Agreement.
(h) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
25. DataPath Access Services. PFPC shall provide to the Fund the DataPath
Internet access services as set forth in the DataPath Access Services
Description attached as Exhibit B hereto as amended from time to time in
accordance with Section 20. Persons who are authorized to access DataPath
are set forth in Schedule A to the DataPath Access Services Description, as
such Schedule A may be amended from time to time.
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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:
------------------------------
GMAM ABSOLUTE RETURN
STRATEGIES FUND, LLC with respect to
its series listed on Exhibit A
attached hereto
By: General Motors Investment
Management Corporation, Manager
By:
---------------------------------
Title:
------------------------------
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AUTHORIZED PERSONS
Name (Typed) Signature
Xxxx Xxxxxxxxx
-------------------------
Xxx X. xx Xxxxx
-------------------------
Xxxxxx X. Xxxxxxxx
-------------------------
Xxxxxxx X. Xxxxx
-------------------------
Xxxx X. Xxxxxxx
-------------------------
Xxxxx X. Xxxxxxxx
-------------------------
Xxxx Torun
-------------------------
Xxxxx Xxxxxx
-------------------------
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EXHIBIT A
This is Exhibit A to the Amended and Restated Administration, Accounting,
and Investor Service Agreement dated November 1, 2002, as amended to date (the
"Agreement") and is for all purposes considered a part of the Agreement. PFPC
will provide services as set forth in the Agreement to the following series of
GMAM Absolute Return Strategies Fund LLC:
GMAM Absolute Return Strategies Fund I
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EXHIBIT B
DataPath Access Services Description
THIS Description is part of the Amended and Restated Administration,
Accounting and Investor Services Agreement dated November 1, 2002, as amended
to date (the "Administration Agreement" or the "Agreement"), between GMAM
Absolute Return Strategies Fund, LLC, with respect to its series listed on
Exhibit A to the Administration Agreement (the "Fund") and PFPC Inc. ("PFPC").
1. PFPC Services. PFPC will perform services as follows:
(a) Provide Users (as defined in subsection (b) below) and the Fund
Service Providers Internet access to PFPC DataPath ("DataPath") at
xxx.xxxxXxxxXxxx.xxx (the "Site") for Fund portfolio data otherwise
supplied by PFPC to Fund service providers via other electronic and
manual methods (the "Services"). Types of information to be provided
on the Site include: (i) data relating to portfolio securities, (ii)
general ledger balances, and (iii) net asset value-related data (NAV
and net asset, distribution and yield detail).
(b) Supply each of the persons specified on Schedule A to this Description
as permissible users of DataPath (the "Users") with a logon ID and
Password.
(c) Provide to Users access to the information listed in (a) above using
standard inquiry tools and reports. Users will be able to modify
standard inquiries to develop user-defined inquiry tools; however,
PFPC will review computer costs for running user-defined inquiries and
may assess surcharges for those requiring excessive hardware
resources. In addition, costs for developing custom reports or
enhancements are not included in the fees set forth below and will be
negotiated and billed separately.
(d) Utilize a form of encryption that is generally available to the public
in the U.S. for standard Internet browsers and establish, monitor and
verify firewalls and other security features (commercially reasonable
for this type of information and these types of users) and exercise
commercially reasonable efforts to attempt to maintain the security
and integrity of the Site.
(e) Monitor the telephone lines involved in providing the Services and
inform the Fund promptly of any malfunctions or service interruptions.
(f) Should DataPath or any part thereof become, or in PFPC's reasonable
opinion, be likely to become the subject of a claim of infringement or
misappropriation, PFPC may, at its option and expense: (a) procure for
the Fund the right to continue using DataPath, (b) replace or modify
DataPath with a non-infringing version of
22
substantially equivalent function and performance, or (c) discontinue
DataPath and refund to the Fund all fees attributable to use of
DataPath hereunder subsequent to the time of discontinuing DataPath
availability.
2. Duties of the Fund and the Users. The Fund will:
(a) provide and maintain a web browser supporting Secure Sockets Layer
128-bit encryption; and
(b) keep logon IDs and passwords confidential and notify PFPC immediately
in the event that a logon ID or password is lost, stolen or if the
Fund has reason to believe that the logon ID and password are being
used by an unauthorized person.
3. Standard of Care; Limitations of Liability
(a) The Fund acknowledges that the Internet is an "open," publicly
accessible network and not under the control of any party. PFPC's
provision of Services is dependent upon the proper functioning of the
Internet and services provided by telecommunications carriers,
firewall providers, encryption system developers and others. Without
limiting the generality or applicability of Sections 13 or 14 of this
Agreement, the Fund agrees that PFPC shall not be liable in any
respect for the actions or omissions of any third party wrongdoers
(i.e., hackers not employed by such party or its affiliates) or of any
third parties involved in the Services and shall not be liable in any
respect for the selection of any such third party, unless that
selection constitutes a breach of PFPC's standard of care set forth in
this Agreement.
(b) Without limiting the generality of the foregoing or any other
provisions of this Description or the balance of the Administration
Agreement, PFPC shall not be liable for delays or failures to perform
any of the Services 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, acts of terrorism, insurrections,
war, riots or failure of the mails, transportation, communication or
power supply, functions or malfunctions of the Internet or
telecommunications services, firewalls, encryption systems or security
devices caused by any of the above, or laws or regulations imposed
after the date of this Administration Agreement.
(c) The provisions of this Section 3 shall survive termination of this
Description and the balance of the Administration Agreement.
23
4. Fees for DataPath Services.
As consideration for the performance by PFPC of the Services, the Fund
will pay the fees set forth in a separate fee letter or work order as
agreed between the parties from time to time.
5. Duration, Termination and Changes to Terms.
(a) PFPC shall have the right at any time to review and propose changes to
the terms and fees described in this Agreement. These changes will
become effective and bind the parties hereto after ninety (90) days
from the date PFPC notifies the Fund of such changes, unless the Fund
terminates this Agreement pursuant hereto or the parties agree
otherwise at such time.
(b) Either party may terminate this Description upon sixty (60) days'
prior written notice to the other.
6. Miscellaneous. In the event of a conflict between specific terms of this
Description and the terms of the balance of the Agreement, this Description
shall control as to the Services.
PFPC INC.
By:
------------------------
Name:
------------------------
Title:
------------------------
GMAM ABSOLUTE RETURN STRATEGIES FUND, LLC
with respect to the series identified on Exhibit A to the Administration
Agreement
By: General Motors Investment Management Corporation, Manager
Name:
------------------------
Title:
------------------------
24
SCHEDULE A to the DataPath
Access Services Description
DataPath Authorized Persons
THIS SCHEDULE A, dated as of , 2002 is Schedule A to the
-----------
DataPath Access Services Description dated , 2002, as amended to date
--------
(the "Description"), between GMAM Absolute Return Strategies Fund, LLC (the
"Fund") with respect to its series identified on Exhibit A to the Administration
Agreement (as defined in the Description) and PFPC Inc. ("PFPC"). This Schedule
A shall supersede all previous forms of Schedule A to the Description as of the
date hereof.
The following persons are Authorized Persons in accordance with the Description
unless and until the Fund notifies PFPC that any of these persons are no longer
such Authorized Persons:
Name Fund or Firm Signature
---- ------------ ---------
Xxxx Xxxxxxxxx General Motors Investment
Management Corporation
(GMIMCo)
-------------------------------
Xxx X. xx Xxxxx General Motors Investment
Management Corporation
(GMIMCo)
-------------------------------
Xxxxxx X. Xxxxxxxx General Motors Investment
Management Corporation
(GMIMCo)
-------------------------------
Xxxxxxx X. Xxxxx General Motors Investment
Management Corporation
(GMIMCo)
-------------------------------
Xxxx X. Xxxxxxx General Motors Investment
Management Corporation
(GMIMCo)
-------------------------------
Xxxxx X. Xxxxxxxx General Motors Investment
Management Corporation
(GMIMCo)
-------------------------------
Xxxx Torun General Motors Investment
Management Corporation
(GMIMCo)
-------------------------------
25
Xxxxx Xxxxxx General Motors Investment
Management Corporation
(GMIMCo)
-------------------------------
PFPC INC.
By:
--------------------
Name:
--------------------
Title:
--------------------
GMAM ABSOLUTE RETURN STRATEGIES FUND, LLC
with respect to its series identified on Exhibit A to the Administration
Agreement
By: General Motors Investment Management Corporation,
Manager
Name:
--------------------
Title:
--------------------
26
