DATE: January 1, 2009 ADMINISTRATION AGREEMENT -between- ACP Advantage Strategic Opportunities Fund -and- PINNACLE FUND ADMINISTRATION LLC Pinnacle Fund Administration LLC Charlotte, NC 28226
DATE: January 1,
2009
-between-
ACP Advantage Strategic Opportunities
Fund
-and-
PINNACLE FUND ADMINISTRATION
LLC
Pinnacle Fund Administration
LLC
0000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxx
000
Xxxxxxxxx, XX
00000
DATE OF AGREEMENT:
January 1,
2009
PARTIES:
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1.
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ACP Advantage Strategic
Opportunities Fund (the “Fund”), a series of ACP Funds Trust, a Delaware statutory
trust that is a non-diversified closed-end management investment company
registered under the Investment Company Act of 1940, as amended, with its
principal office located at 000 X. Xxxxxx Xxxxxxx Xxxx, X000, Xxxxxx, XX
00000.
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2.
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PINNACLE FUND ADMINISTRATION LLC
(the “Administrator”), a limited liability company formed under the
Delaware Limited Liability Company Act whose registered office is c/o
BlumbergExcelsior Corporate Services, Inc., 0000 X. Xxxxxx Xxxxxx Xxxxx
000, Xxxxxxxxxx, XX
00000 with its principal office located at 0000 Xxxxxxxxx
Xxxxxx Xxxxx Xxxxx 000, Xxxxxxxxx XX
00000.
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RECITALS:
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A.
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The Fund wishes to appoint the
Administrator to provide accounting, transfer agent and other
administrative services.
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B.
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The Administrator has agreed to
provide such accounting, transfer agent and other administrative services to
the Fund on the terms of this
Agreement.
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OPERATIVE
PROVISIONS:
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1.
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DEFINITIONS
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1.1
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The following words and
expressions shall have the following
meanings:
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“Auditor”: the auditor of the Fund from time to
time.
“Investment Manager”: the Investment Manager of the Fund
from time to time. Currently Ascendant Capital Partners, LP; a registered
investment advisor with the Securities and Exchange Commission (“SEC”) under the Investment Advisors Act of
1940, as amended.
“Limited Partnership
Agreement”: the Limited
Partnership Agreement of the Fund as may be amended from time to
time.
“Members”: the holders of Units of the
Fund.
“Memorandum”: the Confidential Private Placement
Memorandum of the Fund dated November 2004 and all amendments to that
document.
“Register”: the register of members’ interest holders of the
Fund.
“Statement of Additional Information
(“SAI”): the SAI of the Fund as may be amended from time to
time.
“Units”: shares representing beneficial
interest in the Fund.
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1.2
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Words and expressions contained in
this Agreement shall bear the same meaning as in the Limited
Partnership Agreement, SAI or Memorandum as the
context
requires.
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1.3
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Words importing the singular
number shall include the plural and vice versa. Words importing the
masculine gender shall include the feminine gender and words
importing persons shall include firms and companies and vice
versa.
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1.4
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The division of this Agreement into
sections, clauses and sub-clauses and the insertion of
headings are for convenience of reference only and shall not
affect the construction or interpretation of this
Agreement.
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2.
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APPOINTMENT
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The Fund hereby appoints the
Administrator to administer
the Fund from the date of this Agreement to provide
accounting, transfer agent and other administrative services referred to in
this Agreement.
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3.
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PROVISION OF
FACILITIES
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The Administrator shall provide and pay
for an adequate staff and shall provide suitable office accommodation
and other facilities for efficiently performing its functions as set out in
this Agreement, but the Fund shall not be entitled to the exclusive
use of any such
accommodation or to the exclusive services of any member of such
staff.
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4.
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DUTIES OF THE
ADMINISTRATOR
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During the continuance of this Agreement
the Administrator shall perform the functions of an
administrator to the Fund namely:
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4.1
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calculate and publish the net
asset value per limited partnership interest in accordance with the
provisions of the Limited Partnership Agreement, SAI and the
Memorandum;
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4.2
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at any time during the
Administrator’s business hours permit the
Auditor or any duly
appointed agent or representative of the Fund, at the expense of the Fund, to
audit or inspect the financial records of the Fund and any other
documents or records kept by the Administrator under the terms of
this Agreement and make available all such documents and records in its
possession to the Auditor, agent or representative
during business hours whenever reasonably required to do so and
afford all such information, explanations and assistance as the
Auditor, agent or representative may
require;
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4.3
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dispatch all such circulars,
reports, financial statements or other written material to all persons
entitled to receive the same under the Limited Partnership Agreement,
SAI and the Memorandum as the Fund may
require;
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4.4
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deal with and answer all
correspondence or other inquiries from or on behalf of the Members,
prospective Members or
others;
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4.5
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maintain the principal books of
account of the Fund as required by law or otherwise for the proper
conduct of the financial affairs of the
Fund;
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4.6
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oversee and review the calculation
and payment of fees payable to the Administrator, the Investment
Manager and such other service providers to the Fund as so
directed by the Investment
Manager;
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4.7
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subject to the ultimate
discretion and
approval of the Investment Manager, establish accounting
policies for the Fund and reconcile accounting issues with the
Fund’s Directors, the Auditor and
legal counsel;
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4.8
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generally perform all the duties
usually performed by Administrators of limited liability companies including
(without limitation) the keeping of all
records required to be kept and made under regulations in the State of
Delaware for the time being in force;
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4.9
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preparing and maintaining all
customary financial and accounting books and records in the
appropriate form and in sufficient detail to support an annual independent
audit of the financial condition of the Fund, and performing all
other accounting and clerical services necessary in connection
with the administration of the Fund;
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4.10
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preparing annual financial
statements (which shall have been examined by the Fund’s auditors) within 60 days after
the close of each financial year; preparing
semi-annual financial
statements within 60 days after the close of
the semi-annual period;
and
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4.11
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providing any other service as
required.
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5
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RIGHTS OF THE
ADMINISTRATOR
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The Administrator
may:
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5.1
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employ servants or agents in the
performance of its duties and the exercise of its rights under this
Agreement;
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5.2
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with the prior approval of the Fund, delegate
its functions, powers, discretions, privileges and duties under this
Agreement or any of them to such persons on such terms
and conditions as it may deem appropriate, provided that such
responsibility may not be delegated to the extent that they are to be
performed by any person outside the United States if such
responsibilities are required to be performed within the United States
under United States law;
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5.3
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use the name of the Fund and sign
any necessary letters or other documents for and on behalf of
the Fund as Administrator of the Fund in the performance of its
duties under this Agreement;
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5.4
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act as Administrator for any other
persons on such terms as may be arranged with such persons and
shall not be deemed to be affected with notice of, or to be under any
duty to disclose to the Fund, any fact or thing which may come to
the knowledge of the Administrator or any servant,
agent or delegate of the Administrator in the course of so doing or in
any manner whatsoever otherwise than in the
course of carrying out the duties of Administrator under this
Agreement; and
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5.5
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acquire, hold or deal with for the
account of any customer or other persons and in its own name
or in the name of
such customer or person or of a nominee any units
or securities for the time being issued by the Fund or any
investment in which the Fund is authorized to invest and shall not
be required to account to the Fund for any profit arising
therefrom.
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6
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CONTROL BY INVESTMENT
MANAGER
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In the performance of its duties under
this Agreement the Administrator shall at all times be subject to the control
of, and review by, the Investment
Manager.
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7
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REMUNERATION OF THE
ADMINISTRATOR
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7.1
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The Administrator shall be paid by the Fund by
way of remuneration for its services
under this Agreement fees at such rates as may be agreed from time
to time between the Investment Manager and the Administrator. The
initial fees payable by the Fund to the
Administrator are as
set out in the attached schedule
1.
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7.2
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Amounts payable by the Fund to the
Administrator under this Agreement shall be paid in United
States Dollars monthly in arrears.
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8
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DUTIES OF THE
FUND
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The Fund shall:
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8.1
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with all reasonable expedition
approve or disapprove transfers submitted to it by the
Administrator; and
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8.2
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deliver, or cause to be delivered,
from time to time to the Administrator proper certified or
authenticated copies of its SAI and all amendments thereto and of such resolutions,
votes and other proceedings as may be
necessary for the Administrator in the performance of its duties under
this Agreement.
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9
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RESIGNATION AND CANCELLATION OF
APPOINTMENT
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9.1
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The initial term is for one (1)
year from the date of
this Agreement. This agreement will be
automatically renewed for each subsequent one year period under the same
terms and conditions as stated in this Agreement. Written notice of
cancellation of, or modification to, its terms must be provided by
either party to this
Agreement no less than ninety (90) days before
each automatic renewal
date.
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9.2
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The appointment of the
Administrator may be terminated at any time without penalty by either
party upon not less than 90 days written notice, or at any
time without such
notice if (i) the other party commits a breach of its
obligations under the agreement and such party fails to remedy the
breach within thirty (30) days; (ii) the other party shall go into
liquidation (except a voluntary liquidation for the purpose of reconstruction or
amalgamation upon terms previously approved in writing by
the terminating party); (iii) a receiver of any of the assets of
the other party is appointed; (iv) the other party takes any action or
omits to take any action and such action or omission, in the
judgment of the terminating party, violates or will violate any
applicable law, rule or regulation or any order, judgment or decree or any
court or other agency of government, in each case in any
material respect; or (v) immediately upon written notice to
the other party for “cause” (defined as acts of gross
negligence, bad faith, willful misconduct or
fraud).
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9.3
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Upon the resignation or any
cancellation of the appointment of the Administrator, the Administrator
shall:
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9.3.1
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be released and discharged from
its obligations under this Agreement;
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9.3.2
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upon receipt of all amounts owing
to the Administrator under the terms of this Agreement,
immediately transfer all moneys and papers to its
successor;
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9.3.3
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refund any unearned fees, if any,
at the time of termination; and
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9.3.4
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provide reasonable assistance to
any successor Administrator.
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10
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RESPONSIBILITY OF ADMINISTRATOR
AND INDEMNIFICATION
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10.1
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The Administrator shall use
reasonable care in carrying out its responsibilities, including any
responsibilities that it may delegate under sections 5.1 and 5.2 of this
Agreement.
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10.2
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The Administrator shall not incur
liability by refusing in good faith to perform any duty or obligation
herein which in its reasonable judgment is improper or
unauthorized, provided that in performing its duties and
obligations pursuant to this Agreement it shall not be required at any time
to do or procure the doing of anything contrary to or in breach
of or which constitutes any offence against any applicable law
or regulation then in force.
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10.3
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The Administrator shall not be
responsible for the loss or damage to any documents or property of
the Fund, in the possession of the Administrator or for any failure
to fulfill its duties
hereunder if such
loss, damage or failure shall be caused by or directly or indirectly be due to war, enemy
action, the act of government or other competent authority, riots,
civil disturbance, rebellion, xxxxx, xxxxxxx, accident fire, strike,
explosion or
lock-out or any occurrence or event beyond the
reasonable control of the Administrator. The above
notwithstanding, if possible, the Administrator will take reasonable
precautions to protect the records and assets of the Fund
against such losses.
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10.4
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The Administrator shall not be
responsible for any loss or damage occurring as a result of any
investments that have been incorrectly priced as at any net asset
valuation date for the purposes of contributions or withdrawals of
limited partnership interests, any such losses or damages occurring
being the responsibility of the Investment Manager in their
entirety, provided that such prices or net asset value is established in
accordance with information provided by the Investment Manager
and the Administrator
acted in good faith
and without willful misconduct, gross negligence, bad faith, breach of fiduciary duty or
reckless disregard of its
duties.
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10.5
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The Administrator shall not be
liable to the Fund or its shareholders for any acts or omissions in the
performance of its
services in the absence of willful misconduct, gross negligence, bad
faith, breach of fiduciary duty or reckless disregard of its
duties.
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10.6
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The Fund shall indemnify the
Administrator (which shall include solely for purposes of this
Section 10, each of
the Administrator’s Managers, officers, employees
and members) and hold the Administrator harmless from and against any
expense, loss, liability or damage arising out of any claim asserted or
threatened to be asserted in connection with this Agreement or the services to be
provided hereunder; provided, however, that the Administrator shall not be
entitled to any such indemnification with respect to any expense, loss,
liability or damage which was caused by the Administrator’s own willful misconduct, gross negligence, bad
faith, breach of fiduciary duty or reckless disregard of its duties under
this Agreement.
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10.7
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The Administrator shall indemnify
the Fund and hold the Fund harmless from and against any reasonable
expense, loss, liability or damage arising out of any claim
asserted or threatened to be asserted in connection with this Agreement,
directly or indirectly, caused by the Administrator’s willful misconduct, gross
negligence, bad faith, breach of fiduciary duty or reckless
disregard of its
duties.
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10.8
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The indemnification provisions of
this Section 10 shall survive any termination of this
Agreement.
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11
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FRAUD
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In the absence of willful misconduct,
gross negligence, breach of fiduciary duty or reckless disregard of its
duties and provided that
the officers, servants or agents of the Administrator are not parties to any
fraud, the Administrator shall not be responsible to the Fund for any action
taken by the Administrator upon the faith of any forged or fraudulent document
in any case where, had the document not
been forged or fraudulent, the action taken by the Administrator would have been
the normal and reasonable action to be taken. The above notwithstanding, the
Administrator shall take reasonable precautions to insure that it does not act upon a forged or
fraudulent document.
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12
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CONFIDENTIALITY
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Neither of the parties to this Agreement
shall, unless compelled so to do by any court of competent jurisdiction, either
before or after the termination of this Agreement, disclose any information relating to the
other party without the prior written consent of the other
party.
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13
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NOTICES
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Any notice, instruction or other
instrument required or permitted to be given under this Agreement may be
delivered in person or delivered prepaid registered mail or by fax or
e-mail to the parties at the addresses set
out in this document or such other address as may be notified by either party
from time to time.
Such notice, instruction or other
instrument shall be deemed to have been served in the case of a registered letter
at the expiration of five (5) business days after posting, in the case of fax or
e-mail, immediately on notification of receipt
and if delivered outside normal business hours it shall be deemed to have been
received at the next time
after delivery when normal business hours commence subject to receipt of
confirmation. Evidence that the notice, instruction or other instrument was
properly addressed, stamped and put into the post shall be conclusive evidence
of posting.
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14
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BINDING EFFECT AND
ASSIGNMENT
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This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. Neither the benefit nor the burden of this Agreement shall be
assigned by either the
Administrator or the Fund save with the consent of the other party to this
Agreement. Any attempted assignment, transfer or delegation hereof without such
consent shall be void.
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15
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PROPER
LAW
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This Agreement shall be governed by and
construed in accordance with the laws of the State of
Delaware.
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16
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ENTIRE
AGREEMENT
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This Agreement contains the entire
Agreement between the parties with respect to the subject matter
hereof.
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17
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COUNTERPARTS
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This Agreement may be signed in any
number of counterparts. Any single counterpart or a set of counterparts signed
in either case by the parties hereto shall constitute a full and original
Agreement for all purposes.
Signed as an Agreement on behalf of
the parties on the date set
out in this document.
SIGNED BY _____________________________________
Name: __________________________________________
Title: ___________________________________________
duly authorized for and on behalf
of
ACP Advantage Strategic Opportunities
Fund
in the presence of:
_________________________________
SIGNED BY
_____________________________________
Name:
__________________________________________
Title:
___________________________________________
duly authorized for and on behalf
of
PINNACLE FUND ADMINISTRATION
LLC
in the presence of: _________________________________
SCHEDULE 1
Fees of the
Administrator
Monthly fee of
$1,125
SCHEDULE 2
Anti-Money Laundering Policies and
Procedures
1. Definitions
For the purposes of this Schedule 2,
unless the context otherwise requires, the following words shall have the
following meanings:
“AML Procedures” means
anti-money laundering procedures adopted by the Administrator and enumerated in
this Schedule 2 for the express purpose of servicing the Funds.
“FATF” means the Financial Action Task Force
on Money Laundering.
“High Risk
Investor” means:
(a) a
senior official in the executive, legislative, administrative, military or
judicial branches of a government (whether elected or not), a senior official of
a major political party, or a senior executive of a government-owned
corporation, including any corporation, business or other entity that has been
formed by, or for the benefit of, a senior political figure; (b) an immediate
family member of a senior political figure which typically includes the
political figure’s parents, siblings, spouse, children and in-laws; (c) a close
associate of a senior political figure being a person who is widely and publicly
known internationally to maintain an unusually close relationship with the
senior political figure, and includes a person who is in a position to conduct
substantial domestic and international financial transactions on behalf of the
senior political figure; or (d) a person or entity resident in or whose
subscription monies originate from a Non-Cooperative Jurisdiction.
“Non-Cooperative
Jurisdiction” means any non-U.S. country that has been designated as
non-cooperative with international
anti-money laundering principles or
procedures by an intergovernmental group or organization, such as the FATF, of
which the United States is a member and with which designation the United States
representative to the group or organization continues to
concur.
“Prohibited
Investor” means:
(a) a
person or entity whose name appears on any of the various lists issued and
maintained by the U.S. Office of Foreign Assets Control (“OFAC”), including the List of
Specially Designated Nationals and Blocked Persons, the Specially Designated
Terrorists List and the Specially Designated Narcotics Traffickers List; (b) a
Foreign Shell Bank as defined by FATF; or (c) a person or entity who is a
citizen or resident of, or which is located in, or whose subscription funds are
transferred from or through a Foreign Shell Bank in a Non-Cooperative
Jurisdiction or Sanctioned Regime.
“Qualified Financial
Institution” means as a financial institution,
which
is:
(a) established in a European Union
member state and subject to the European Commission Money Laundering Directives,
or (b) established in one of the countries which make up the FATF and is a
member in good standing of FATF and has undergone two rounds of FATF mutual
evaluations, such countries are listed on the following website address:
xxxx://xxx0.xxxx.xxx/xxxx/
“Sanctioned Regimes” means
targeted foreign countries, terrorism sponsoring organizations and international
narcotics traffickers in respect of which OFAC administers and enforces economic
and trade sanctions based on U.S. foreign policy and national security
goals.
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2.
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Procedures to be Performed by the
Administrator in conjunction with servicing the
Funds
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(a) The
Administrator will receive all Subscription Documents and perform “Good Order
Review” procedures on each, to include ensuring that each is fully completed and
all relevant investor information is provided. To the extent that any
information is missing or clearly indicates a potential issue with any policies
outlined in this Schedule 2, the Administrator will inform both the Funds’
counsel and the General Partner.
(b) The Administrator will obtain wire
references from both the receiving and sending bank for each
investor’s initial investment and ensure that (i)
funds are from the same entity as that indicated on the subscription document,
(ii) that funds do not originate from an institution that is not a
Qualified Financial Institution and (iii) funds do not originate from either
a Non-Cooperative Jurisdiction or a Sanctioned Regime. Any exceptions will be escalated to the
Funds’ counsel and the General Partner for
resolution.
(c) Upon the initial contribution by any
investor, the Administrator will perform a check to determine if such investor
is a person or entity whose name appears on any of the various lists issued and
maintained by OFAC, including the List of Specially Designated Nationals and Blocked
Persons, the Specially Designated Terrorists List and the Specially Designated
Narcotics Traffickers List. If any investors are included on such OFAC lists,
both the General Partner and the Funds counsel will be
informed.
(d) The Administrator will also perform
reasonable procedures, based on commonly available information, to ensure that the investor is neither a High Risk Investor nor
Prohibited Investor. If any investors are included on such OFAC lists or meet
the definition of High Risk
Investor or Prohibited Investor, both the General Partner and the
Funds’ counsel will be
informed.
(e) On a monthly basis, the
Administrator will compare all current investors to the various OFAC lists and
inform both the Funds’ counsel and the General Partner if any
investors are noted on such lists.
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3.
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Reliance Upon Information
Provided
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For
purposes of this Schedule 2, the Administrator shall be entitled to rely without
investigation upon any statement, confirmation, notice or other instrument or
communication (including electronic mail), reasonably believed by it to be
genuine and to have been properly made, signed or authorized by the relevant
party (including the sending or receiving bank, or the shareholder or
shareholder’s agent, as the case may be), and shall be entitled to rely upon any
statement, information or advice it receives from the General Partner or the
Funds’ counsel.
PINNACLE FUND ADMINISTRATION
LLC
CLIENT SERVICE PLAN
FOR:
ACP ADVANTAGE STRATEGIC OPPORTUNITIES
FUND
It is our pleasure to provide you with
the following client service plan, which has been tailored to meet your specific
needs and expectations based on your anticipated needs and
expectations.
Services to be provided
Pinnacle Fund Administration LLC
(“PFA”) staff in Charlotte, NC will have
responsibility for the following:
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|
·
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Calculation of the month end NAV
for the Fund.
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·
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PFA will produce the draft NAV of
the Fund within 1 business day of approval of the final ACP Strategic Opportunities
II Fund, LLC (the “Master”) NAV and will send it for
detailed review and approval by ACM personnel prior to distribution to
interested parties.
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·
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Once approved and signed off by
Ascendant and PFA personnel, the final NAV will be distributed to all
interested parties.
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·
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Assist the ACM with the processing
of contribution and withdrawal requests, ensuring compliance with
all relevant anti-money laundering legislation.
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·
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Liaison with Ascendant staff and
external auditors for
preparation and completion of the annual audited
financial statements as well as the semi-annual financials for the Master
Fund and the Feeder Funds.
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·
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Liaising with investors in
responding to enquiries.
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·
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PFA staff will respond to all
requests within 1
business day.
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Ascendant staff will assist PFA staff
by:
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·
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Providing copies of all
subscription/withdrawal requests received by the Fund’s
investors.
|
DATE: January 1,
2009
-between-
ACP Institutional Series Strategic
Opportunities Fund
-and-
PINNACLE FUND ADMINISTRATION
LLC
Pinnacle Fund Administration
LLC
0000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxx
000
Xxxxxxxxx, XX 00000
DATE OF AGREEMENT:
January 1,
2009
PARTIES:
|
1.
|
ACP Institutional Series Strategic
Opportunities Fund (the “Fund”), a series of ACP Funds Trust, a
Delaware statutory trust that is a non-diversified closed-end management
investment company registered under the Investment
Company Act of 1940, as amended, with its principal office located at 000
X. Xxxxxx Xxxxxxx Xxxx, X000, Xxxxxx, XX
00000.
|
|
2.
|
PINNACLE FUND ADMINISTRATION LLC
(the “Administrator”), a limited liability company
formed under the
Delaware Limited Liability Company Act whose registered office is c/o
BlumbergExcelsior Corporate Services, Inc., 0000 X. Xxxxxx Xxxxxx Xxxxx
000, Xxxxxxxxxx, XX 00000 with its principal office located at 0000
Xxxxxxxxx Xxxxxx Xxxxx Xxxxx 000, Xxxxxxxxx XX
00000.
|
RECITALS:
|
A.
|
The Fund wishes to appoint the
Administrator to provide accounting, transfer agent and other
administrative services.
|
|
B.
|
The Administrator has agreed to
provide such accounting, transfer agent and other administrative services
to the Fund on the
terms of this Agreement.
|
OPERATIVE
PROVISIONS:
|
1.
|
DEFINITIONS
|
|
|
1.1
|
The following words and
expressions shall have the following
meanings:
|
“Auditor”: the auditor of the Fund from time to
time.
“Investment Manager”: the Investment Manager of the Fund from time to time.
Currently Ascendant Capital Partners, LP; a registered investment advisor with
the Securities and Exchange Commission (“SEC”) under the Investment Advisors Act of
1940, as amended.
“Limited Partnership
Agreement”: the Limited Partnership Agreement of the
Fund as may be amended from time to time.
“Members”: the holders of Units of the
Fund.
“Memorandum”: the Confidential Private Placement
Memorandum of the Fund dated November 2004 and all amendments to that
document.
“Register”: the register of members’ interest holders of the
Fund.
“Statement of Additional Information
(“SAI”): the SAI of the Fund as may be amended
from time to time.
“Units”: shares representing beneficial
interest in the Fund.
|
|
1.2
|
Words and expressions contained in this
Agreement shall bear the same meaning as in the Limited Partnership
Agreement, SAI or Memorandum as the context
requires.
|
|
|
1.3
|
Words importing the singular
number shall include the plural and vice versa. Words importing
the masculine gender
shall include the
feminine gender and words importing persons shall include firms and companies and vice
versa.
|
|
|
1.4
|
The division of this Agreement
into sections, clauses and sub-clauses and the insertion of headings are
for convenience of reference only and shall not
affect the construction or interpretation of this
Agreement.
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|
2.
|
APPOINTMENT
|
The Fund hereby appoints the
Administrator to administer the Fund from the date of this Agreement to provide
accounting, transfer agent and other administrative services referred to in
this Agreement.
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3.
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PROVISION
OF FACILITIES
|
The
Administrator shall provide and pay for an adequate staff and shall provide
suitable office accommodation and other facilities for efficiently performing
its functions as set out in this Agreement, but the Fund shall not be entitled
to the exclusive use of any such accommodation or to the exclusive services of
any member of such staff.
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4.
|
DUTIES OF THE
ADMINISTRATOR
|
During the continuance of this Agreement
the Administrator shall
perform the functions of an administrator to the Fund
namely:
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|
4.1
|
calculate and publish the net
asset value per limited partnership interest in accordance with the
provisions of the Limited Partnership Agreement, SAI and the
Memorandum;
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|
|
4.2
|
at any time during the
Administrator’s business hours permit the
Auditor or any duly appointed agent or representative of the Fund, at the
expense of the Fund, to audit or inspect the financial records of the Fund
and any other documents or records kept by the Administrator under the
terms of this Agreement and make available all such documents and records
in its possession to the Auditor, agent or representative during business
hours whenever reasonably required to do so and afford all such
information, explanations and assistance as the
Auditor, agent or representative may
require;
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|
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4.3
|
dispatch all such circulars,
reports, financial statements or other written material to all persons
entitled to receive the same under the Limited Partnership
Agreement, SAI and
the Memorandum as the
Fund may require;
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|
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4.4
|
deal with and answer all
correspondence or other inquiries from or on behalf of the Members,
prospective Members or
others;
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|
|
4.5
|
maintain the principal books of
account of the Fund as required by law or otherwise for the proper conduct
of the financial affairs of the
Fund;
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|
|
4.6
|
oversee and review the calculation
and payment of fees payable to the Administrator, the Investment
Manager and such other service providers to the Fund as so
directed by the Investment
Manager;
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|
|
4.7
|
subject to the ultimate discretion
and approval of the Investment Manager, establish accounting
policies for the Fund and reconcile accounting issues with the
Fund’s Directors, the Auditor and
legal counsel;
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|
|
4.8
|
generally perform all the duties usually performed
by Administrators of
limited liability companies including (without limitation) the keeping of all
records required to be kept and made under regulations in the State of
Delaware for the time being in force;
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|
|
4.9
|
preparing and maintaining all customary
financial and accounting books and records in the
appropriate form and in sufficient detail to support an annual independent
audit of the financial condition of the Fund, and performing all
other accounting and clerical services necessary in connection with the
administration of the Fund;
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|
|
4.10
|
preparing annual financial
statements (which shall have been examined by the Fund’s auditors) within 60 days after
the close of each
financial year; preparing semi-annual financial statements within 60 days after the close of
the semi-annual period; and
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|
|
4.11
|
providing any other service as
required.
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|
5
|
RIGHTS
OF THE ADMINISTRATOR
|
The Administrator
may:
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|
5.1
|
employ servants or agents in the
performance of its duties and the exercise of its rights under this
Agreement;
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|
|
5.2
|
with the prior approval of the
Fund, delegate its functions, powers, discretions, privileges and duties
under this Agreement or any of them to such persons on such terms and
conditions as it may deem appropriate, provided that such responsibility may not
be delegated to the extent that they are to be performed by any person
outside the United States if such responsibilities are required to be
performed within the United States under United States
law;
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|
|
5.3
|
use the name of the Fund and sign any necessary
letters or other documents for and on behalf of the Fund as Administrator
of the Fund in the performance of its duties under this
Agreement;
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|
|
5.4
|
act as Administrator for any other
persons on such terms as may be arranged with such persons and shall not be
deemed to be affected with notice of, or to be under any
duty to disclose to the Fund, any fact or thing which may come to
the knowledge of the Administrator or any servant,
agent or delegate of the Administrator in the course of so doing or in any
manner whatsoever
otherwise than in the course of carrying out the duties of Administrator under this
Agreement; and
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|
|
5.5
|
acquire, hold or deal with for the
account of any customer or other persons and in its own name or in
the name of such
customer or person or
of a nominee any units or securities for the time being issued by the Fund or any
investment in which the Fund is authorized to invest and shall not
be required to account to the Fund for any profit arising
therefrom.
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6
|
CONTROL BY INVESTMENT
MANAGER
|
In the performance of its duties under
this Agreement the Administrator shall at all times be
subject to the control of, and review by, the Investment
Manager.
|
7
|
REMUNERATION OF THE
ADMINISTRATOR
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|
|
7.1
|
The Administrator shall be paid by
the Fund by way of
remuneration for its services under this Agreement fees at such rates as
may be agreed from time to time between the Investment Manager and the
Administrator. The initial fees payable by the Fund to the Administrator
are as set out in the attached schedule
1.
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|
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7.2
|
Amounts payable by the Fund to the
Administrator under this Agreement shall be paid in United States Dollars
monthly in arrears.
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|
8
|
DUTIES OF THE
FUND
|
The Fund
shall:
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|
8.1
|
with
all reasonable expedition approve or disapprove transfers submitted to it
by the Administrator; and
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|
|
8.2
|
deliver,
or cause to be delivered, from time to time to the Administrator proper
certified or authenticated copies of its SAI and all amendments thereto
and of such resolutions, votes and other proceedings as may be necessary
for the Administrator in the performance of its duties under this
Agreement.
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|
9
|
RESIGNATION AND CANCELLATION OF
APPOINTMENT
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|
|
9.1
|
The initial term is for one (1)
year from the date of this Agreement. This agreement will be
automatically renewed for each subsequent one year period under the same
terms and conditions as stated in this Agreement. Written notice of
cancellation of, or modification to, its terms must be provided by either
party to this
Agreement no less than ninety (90) days before each automatic renewal
date.
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|
9.2
|
The appointment of the
Administrator may be terminated at any time without penalty by either
party upon not less than 90 days written notice, or at any time
without such notice
if (i) the other party commits a breach of its obligations under the
agreement and such party fails to remedy the breach within thirty (30)
days; (ii) the other party shall go into liquidation (except a voluntary
liquidation for the purpose of reconstruction or amalgamation
upon terms previously approved in writing by the terminating party); (iii)
a receiver of any of the assets of the other party is appointed; (iv) the
other party takes any action or omits to take any action and such action
or omission, in the judgment of the
terminating party, violates or will violate any applicable law, rule or
regulation or any order, judgment or decree or any court or other agency
of government, in each case in any material respect; or (v) immediately
upon written notice to the other party
for “cause” (defined as acts of gross
negligence, bad faith, willful misconduct or
fraud).
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|
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9.3
|
Upon the resignation or any
cancellation of the appointment of the Administrator, the Administrator
shall:
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|
|
9.3.1
|
be released and discharged from its
obligations under this
Agreement;
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|
9.3.2
|
upon receipt of all amounts owing
to the Administrator under the terms of this Agreement, immediately
transfer all moneys and papers to its
successor;
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|
9.3.3
|
refund any unearned fees, if
any, at the time of
termination; and
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|
9.3.4
|
provide reasonable assistance to
any successor
Administrator.
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|
10
|
RESPONSIBILITY OF ADMINISTRATOR
AND INDEMNIFICATION
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|
|
10.1
|
The Administrator shall use
reasonable care in carrying out its responsibilities, including any
responsibilities that it may delegate under sections 5.1 and 5.2 of this
Agreement.
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|
|
10.2
|
The Administrator shall not incur
liability by refusing in good faith to perform any duty or obligation
herein which in its reasonable judgment is improper or
unauthorized, provided that in performing its duties and obligations
pursuant to this Agreement it shall not be required at any time
to do or procure the doing of anything contrary to or in breach
of or which constitutes any offence against any applicable law
or regulation then in force.
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|
10.3
|
The Administrator shall not be
responsible for the loss or damage to any documents or property of
the Fund, in the possession of the Administrator or for any failure
to fulfill its duties hereunder if such loss, damage or failure
shall be caused by or
directly or indirectly be due to war, enemy
action, the act of government or other competent authority, riots,
civil disturbance, rebellion, xxxxx, xxxxxxx, accident fire, strike,
explosion or lock-out or any occurrence or event beyond the reasonable control
of the Administrator.
The above notwithstanding, if possible, the Administrator will take reasonable
precautions to protect the records and assets of the Fund
against such losses.
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|
10.4
|
The Administrator shall
not be responsible
for any loss or damage occurring as a result of any
investments that have been incorrectly priced as at any net asset
valuation date for the purposes of contributions or withdrawals of
limited partnership interests, any such losses or damages occurring being
the responsibility of the Investment Manager in their
entirety, provided that such prices or net asset value is established in
accordance with information provided by the Investment Manager
and the Administrator acted in good faith and without willful
misconduct, gross negligence, bad faith, breach of fiduciary duty or
reckless disregard of its
duties.
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|
|
10.5
|
The Administrator shall not be
liable to the Fund or its shareholders for any acts or
omissions in the
performance of its services in the absence of willful misconduct, gross
negligence, bad faith, breach of fiduciary duty or reckless disregard of
its duties.
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|
10.6
|
The Fund shall indemnify the
Administrator (which shall include solely for purposes of this Section 10, each of the
Administrator’s Managers, officers, employees
and members) and hold the Administrator harmless from and against any
expense, loss, liability or damage arising out of any claim asserted or
threatened to be asserted in connection with this Agreement or the
services to be provided hereunder; provided, however, that the
Administrator shall not be entitled to any such indemnification with
respect to any expense, loss, liability or damage which was caused by the
Administrator’s own willful misconduct, gross
negligence, bad faith, breach of fiduciary duty or reckless disregard of
its duties under this
Agreement.
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|
|
10.7
|
The Administrator shall indemnify
the Fund and hold the Fund harmless from and against any reasonable
expense, loss,
liability or damage arising out of any claim asserted or threatened to be
asserted in connection with this Agreement, directly or indirectly, caused
by the Administrator’s willful misconduct, gross
negligence, bad faith, breach of fiduciary duty or reckless disregard of its
duties.
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|
|
10.8
|
The indemnification provisions of
this Section 10 shall survive any termination of this
Agreement.
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|
11
|
FRAUD
|
In the absence of willful misconduct,
gross negligence, breach of fiduciary duty or reckless disregard of
its duties and provided
that the officers, servants or agents of the Administrator are not parties to
any fraud, the Administrator shall not be responsible to the Fund for any action
taken by the Administrator upon the faith of any forged or fraudulent
document in any case where, had the document
not been forged or fraudulent, the action taken by the Administrator would have
been the normal and reasonable action to be taken. The above notwithstanding,
the Administrator shall take reasonable precautions to insure that it does not act upon a forged
or fraudulent document.
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12
|
CONFIDENTIALITY
|
Neither of the parties to this Agreement
shall, unless compelled so to do by any court of competent jurisdiction, either
before or after the termination of this Agreement, disclose any information relating to
the other party without the prior written consent of the other
party.
|
13
|
NOTICES
|
Any notice, instruction or other
instrument required or permitted to be given under this Agreement may be
delivered in person or delivered prepaid registered mail or by fax
or e-mail to the parties at the addresses set out in this document or such other
address as may be notified by either party from time to
time.
Such notice, instruction or other
instrument shall be deemed to have been served in the case of a registered
letter at the expiration of five (5) business days after posting, in the case of
fax or e-mail, immediately on notification of receipt and if delivered outside
normal business hours it shall be deemed to have been received at the next time after delivery
when normal business hours commence subject to receipt of confirmation. Evidence
that the notice, instruction or other instrument was properly addressed, stamped
and put into the post shall be conclusive evidence of posting.
|
14
|
BINDING EFFECT AND
ASSIGNMENT
|
This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. Neither the benefit nor the burden of this Agreement shall be
assigned by either the
Administrator or the Fund save with the consent of the other party to this
Agreement. Any attempted assignment, transfer or delegation hereof without such
consent shall be void.
|
15
|
PROPER
LAW
|
This Agreement shall be governed by and
construed in accordance
with the laws of the State of Delaware.
|
16
|
ENTIRE
AGREEMENT
|
This Agreement contains the entire
Agreement between the parties with respect to the subject matter
hereof.
|
17
|
COUNTERPARTS
|
This Agreement may be signed in any
number of counterparts. Any
single counterpart or a set of counterparts signed in either case by the parties
hereto shall constitute a full and original Agreement for all
purposes.
Signed as an Agreement on behalf of the
parties on the date set out in this document.
SIGNED BY _______________________________________
Name: _____________________________________________
Title: ______________________________________________
duly authorized for and on behalf
of
ACP Institutional Series Strategic
Opportunities Fund
in the presence of: ____________________________________
SIGNED BY _______________________________________
Name: _____________________________________________
Title: ______________________________________________
duly authorized for and on behalf
of
PINNACLE FUND ADMINISTRATION
LLC
in the presence of: ____________________________________
SCHEDULE 1
Fees of the
Administrator
Monthly fee of
$1,125
SCHEDULE 2
Anti- Money Laundering Policies and
Procedures
1. Definitions
For the
purposes of this Schedule 2, unless the context otherwise requires, the
following words shall have the following meanings:
“AML Procedures” means
anti-money laundering procedures adopted by the Administrator and enumerated in
this Schedule 2 for the express purpose of servicing the Funds.
“FATF” means the Financial Action Task Force
on Money Laundering.
“High Risk
Investor” means:
(a) a senior official in the executive,
legislative, administrative, military or judicial branches of a government
(whether elected or not), a senior official of a major political party, or a
senior executive of a government-owned corporation, including any
corporation, business or other entity that has been formed by, or for the
benefit of, a senior political figure; (b) an immediate family member of a
senior political figure which typically includes the political figure’s parents, siblings, spouse, children
and in-laws; (c) a close associate of a senior political figure being a person
who is widely and publicly known internationally to maintain an unusually close
relationship with the senior political figure, and includes a person who is in a position to
conduct substantial domestic and international financial transactions on behalf
of the senior political figure; or (d) a person or entity resident in or whose
subscription monies originate from a Non-Cooperative Jurisdiction.
“Non-Cooperative
Jurisdiction” means any non-U.S. country that has
been designated as non-cooperative with international anti-money laundering
principles or procedures by an intergovernmental group or organization, such as
the FATF, of which the
United States is a member and with which designation the United States
representative to the group or organization continues to
concur.
“Prohibited
Investor” means:
(a) a person or entity whose name
appears on any of the various lists issued and maintained by the U.S. Office of Foreign
Assets Control (“OFAC”), including the List of Specially
Designated Nationals and Blocked Persons, the Specially Designated Terrorists
List and the Specially Designated Narcotics Traffickers List; (b) a Foreign
Shell Bank as defined by
FATF; or (c) a person or entity who is a citizen or resident of, or which is
located in, or whose subscription funds are transferred from or through a
Foreign Shell Bank in a Non-Cooperative Jurisdiction or Sanctioned
Regime.
“Qualified
Financial
Institution” means as a financial institution, which
is:
(a)
established in a European Union member state and subject to the European
Commission Money Laundering Directives, or (b) established in one of the
countries which make up the FATF and is a member in good standing of FATF and
has undergone two rounds of FATF mutual evaluations, such countries are listed
on the following website address: xxxx://xxx0.xxxx.xxx/xxxx/
“Sanctioned Regimes” means
targeted foreign countries, terrorism sponsoring organizations and international
narcotics traffickers in respect of which OFAC administers and enforces economic
and trade sanctions based on U.S. foreign policy and national security
goals.
|
2.
|
Procedures to be Performed by the
Administrator in conjunction with servicing the
Funds
|
(a) The
Administrator will receive all Subscription Documents and perform “Good Order
Review” procedures on each, to include ensuring that each is fully completed and
all relevant investor information is provided. To the extent that any
information is missing or clearly indicates a potential issue with any policies
outlined in this Schedule 2, the Administrator will inform both the Funds’
counsel and the General Partner.
(b) The
Administrator will obtain wire references from both the receiving and sending
bank for each investor’s initial investment and ensure that (i) funds are from
the same entity as that indicated on the subscription document, (ii) that funds
do not originate from an institution that is not a Qualified Financial
Institution and (iii) funds do not originate from either a Non-Cooperative
Jurisdiction or a Sanctioned Regime. Any exceptions will be escalated to the
Funds’ counsel and the General Partner for resolution.
(c) Upon
the initial contribution by any investor, the Administrator will perform a check
to determine if such investor is a person or entity whose name appears on any of
the various lists issued and maintained by OFAC, including the List of Specially
Designated Nationals and Blocked Persons, the Specially Designated Terrorists
List and the Specially Designated Narcotics Traffickers List. If any investors
are included on such OFAC lists, both the General Partner and the Funds’ counsel
will be informed.
(d) The
Administrator will also perform reasonable procedures, based on commonly
available information, to ensure that the investor is neither a High Risk
Investor nor Prohibited Investor. If any investors are included on such OFAC
lists or meet the definition of High Risk Investor or Prohibited Investor, both
the General Partner and the Funds’ counsel will be informed.
(e) On a
monthly basis, the Administrator will compare all current investors to the
various OFAC lists and inform both the Funds’ counsel and the General Partner if
any investors are noted on such lists.
|
3.
|
Reliance Upon Information
Provided
|
For purposes of this Schedule 2, the
Administrator shall be entitled to rely without investigation upon any
statement, confirmation, notice or other instrument or communication
(including electronic
mail), reasonably believed by it to be genuine and to have been properly made,
signed or authorized by the relevant party (including the sending or receiving
bank, or the shareholder or shareholder’s agent, as the case may be), and shall
be entitled to rely upon any statement,
information or advice it receives from the General Partner or the
Funds’ counsel.
PINNACLE FUND ADMINISTRATION
LLC
CLIENT SERVICE PLAN
FOR:
ACP INSTITUTIONAL SERIES STRATEGIC
OPPORTUNITIES FUND
It is our pleasure to provide you with the following client
service plan, which has been tailored to meet your specific needs and
expectations based on your anticipated needs and
expectations.
Services to be
provided
Pinnacle Fund Administration LLC
(“PFA”) staff in Charlotte, NC will have responsibility for
the following:
|
|
·
|
Calculation of the month end NAV
for the Fund.
|
|
|
·
|
PFA will produce the draft NAV of
the Fund within 1 business day of approval of the final ACP Strategic
Opportunities II Fund, LLC (the “Master”) NAV and will send it for detailed review
and approval by ACM personnel prior to distribution to interested
parties.
|
|
|
·
|
Once approved and signed off by
Ascendant and PFA personnel, the final NAV will be distributed to all
interested parties.
|
|
|
·
|
Assist the ACM with
the processing of
contribution and withdrawal requests, ensuring compliance with all
relevant anti-money laundering
legislation.
|
|
|
·
|
Liaison with Ascendant staff and
external auditors for preparation and completion of the annual audited
financial statements as well as the semi-annual financials
for the Master Fund and the Feeder
Funds.
|
|
|
·
|
Liaising with investors in
responding to enquiries.
|
|
|
·
|
PFA staff will respond to all
requests within 1 business
day.
|
Ascendant staff will assist PFA staff
by:
|
|
·
|
Providing copies of all subscription/withdrawal
requests received by the Fund’s
investors.
|
