Exhibit 2(k)(ix)
REGULATORY ADMINISTRATION SERVICES AGREEMENT
THIS AGREEMENT is made as of January 1, 2005 by and between BACAP
ALTERNATIVE MULTI-STRATEGY FUND, LLC, a Delaware limited liability company (the
"Fund"), and PFPC INC., a Massachusetts corporation ("PFPC").
W I T N E S S E T H :
WHEREAS, the Fund is registered as a closed-end, non-diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act") and the Securities Act of 1933, as amended ("1933
Act"); and
WHEREAS, the Fund wishes to retain PFPC to provide certain regulatory
administration services provided for herein, and PFPC wishes to furnish such
services.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1934 ACT" means the Securities Exchange Act of 1934, as
amended.
(b) "ADVISER" means Banc of America Investment Advisors, Inc.,
which is the investment adviser to the Fund.
(c) "AUTHORIZED PERSON" means any officer of the Fund and any
other person duly authorized by the Fund's managers to give
Oral Instructions and Written Instructions on behalf of the
Fund. An Authorized Person's scope of authority may be limited
by setting forth such limitation in a written document signed
by an officer of the Fund and received by PFPC.
(d) "CHANGE OF CONTROL" means a change in ownership or control
(not including transactions between wholly-owned direct or
indirect subsidiaries of a common parent) of 25% or more of
the beneficial ownership of the shares of common stock or
shares of beneficial interest of an entity or its parent(s).
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(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "MEMBER" shall have the same meaning given such term in the
LLC Agreement (as hereinafter defined).
(g) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC
from an Authorized Person or from a person reasonably believed
by PFPC to be an Authorized Person.
(h) "ORGANIZATIONAL DOCUMENTS" means the Fund's charter or
articles of incorporation, certificate of formation, Limited
Liability Company Agreement ("LLC Agreement"), bylaws,
confidential offering memorandum, registration statement and
other documents relating to the organization of the Fund, as
such may be amended from time to time.
(i) "SEC" means the Securities and Exchange Commission.
(j) "SECURITIES LAWS" means the 1933 Act, the 1934 Act, the 1940
Act and the CEA and the rules and regulations thereunder.
(k) "WRITTEN INSTRUCTIONS" means (i) written instructions signed
by an Authorized Person and received by PFPC, (ii) written
instructions sent by an Authorized Person via electronic mail
and received by PFPC, or (iii) 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. Written instructions may be
delivered by hand, mail, electronic mail, tested telegram,
cable, telex or facsimile sending device.
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2. APPOINTMENT. The Fund hereby appoints PFPC to provide regulatory
administration services to the Fund, in accordance with the terms set
forth in this Agreement. PFPC accepts such appointment and agrees to
furnish such services. Any regulatory administration services provided
by PFPC to the Fund are subject to Fund counsel's review and approval
although the parties agree that Fund counsel's review and approval may
not be sought in every instance on routine matters.
3. COMPLIANCE WITH RULES AND REGULATIONS.
PFPC undertakes to comply with the applicable requirements of the
Securities Laws, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be
performed by PFPC hereunder. Except as specifically set forth herein,
PFPC assumes no responsibility for such compliance by the Fund.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act
only upon Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instructions or
Written Instructions it receives from an Authorized Person (or
from a person reasonably believed by PFPC to be an Authorized
Person) pursuant to this Agreement. In the absence of manifest
error, PFPC may assume that any Oral Instruction or Written
Instruction received hereunder is not in any way inconsistent
with the provisions of the Organizational Documents or this
Agreement or of any vote, resolution or proceeding of the
Fund's managers or Members, unless and until PFPC receives
Written Instructions to the contrary.
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(c) The Fund agrees to forward to PFPC Written Instructions
confirming Oral Instructions (except where such Oral
Instructions are given by PFPC or any of its officers,
employees or affiliates) so that PFPC receives the Written
Instructions as promptly as practicable and in any event by
the close of business on the day after such Oral Instructions
are received. The fact that such confirming Written
Instructions are not received by PFPC or differ from the Oral
Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral
Instructions or PFPC's ability to rely upon such Oral
Instructions to the extent such transaction or reliance takes
place before receipt of differing Written Instructions.
5. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If PFPC is in doubt as to any action it
should or should not take hereunder, PFPC may request
directions or advice, including Oral Instructions or 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 hereunder, PFPC may request advice from counsel of
its own choosing (who may be counsel for the Fund, the Fund's
investment adviser or PFPC, at the option of PFPC). The cost
of advice from counsel pursuant to this provision shall be
borne by PFPC unless the advice is sought, with the Fund's
specific consent in the particular instance, from counsel to
the Fund or the Fund's investment adviser.
(c) CONFLICTING ADVICE. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC receives from the Fund, and the advice PFPC
receives from counsel, PFPC may rely upon and follow the
advice of counsel. PFPC shall promptly inform the Fund of such
conflict.
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(d) PROTECTION OF PFPC. PFPC shall be indemnified by the Fund and
without liability for any action PFPC takes or does not take
in reliance upon directions or advice or Oral Instructions or
Written Instructions PFPC receives from or on behalf of the
Fund (except where such Oral Instructions or Written
Instructions are given by PFPC or any of its officers,
employees, affiliates or agents) or from counsel and which
PFPC believes, reasonably and in good faith, to be consistent
with those directions or advice or Oral Instructions or
Written Instructions. Nothing in this paragraph (d) of Section
5 shall be construed so as to impose an obligation upon PFPC
(i) to seek such directions or advice or Oral Instructions or
Written Instructions, or (ii) to act in accordance with such
directions or advice or Oral Instructions or Written
Instructions if such Instructions are contrary to applicable
law or contrary to the provisions of this Agreement.
6. 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. Such books and records shall be prepared and
maintained as required by the 1940 Act and other applicable
Securities Laws, rules and regulations. The Fund and
Authorized Persons shall have access to such books and records
at all times during PFPC's normal business hours. Upon the
reasonable request of the Fund, copies of any such books and
records shall be provided by PFPC to the Fund or to an
Authorized Person, at the Fund's expense (subject to Section
14(a)). Any such books and records may be maintained in the
form of electronic media and stored on any magnetic disk or
tape or similar recording method to the extent permitted by
applicable law.
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(b) PFPC shall keep the following records:
(i) Upon request, all books and records with respect to the
Fund's books of account;
(ii) Upon request, records of the Fund's securities
transactions;
(iii) all other books and records as PFPC may be required to
maintain pursuant to Rule 31a-1 and Rule 31a-2 of the
1940 Act in connection with the services provided
hereunder;
(iv) original or signed copies of the Fund's Organizational
Documents, agreements and prior meeting minutes to the
extent provided by the Fund and as described in Section
13(x) hereof; and
(v) original or signed copies of the SEC filings set forth
in Section 13(xii) hereof.
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7. CONFIDENTIALITY.
(a) Each party, including their employees and affiliates, shall
keep confidential any information relating to the other
party's business ("Confidential Information") and will not
(except as required by applicable law, regulation, valid legal
process or regulatory request), without the prior written
consent of the other party, disclose any Confidential
Information in any manner whatsoever (except to either party's
employees, or their independent contractors, auditors and
professional advisors, provided they first agree to be bound
by confidentiality obligations substantially similar to this
Section 7), and will not use any Confidential Information
other than as is permitted or contemplated under or in order
to carry out this Agreement. Confidential Information shall
include, but is not limited to (i) 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, sales estimates, business plans,
customer relationships, customer profiles, customer lists,
vendor lists and supplier lists; (ii) Organizational
Documents, information relating to the Fund's investments in
underlying funds or investment vehicles and any other
investment activities of the Fund, the Fund's investment
strategies, the identity of the investors in the Fund, the
lending activities of the Fund (including, but not limited to,
the terms of any such loans and the identity of the lenders or
borrowers), any offering materials related to the Fund or
other documents and materials prepared by the Fund in
connection with the operation of the Fund, and performance
results (including supporting information and documentation)
relating to the past, present or future investments or
business activities of the Fund or PFPC, their respective
subsidiaries and affiliated companies and the customers,
clients and suppliers of any of them; (iii) any and all
information relating to the underlying funds or investment
vehicles in which the Fund invests or has invested (including,
but not limited to, any offering documents, partnership,
limited liability company or other governing agreements,
performance information (including supporting information or
documentation) or financial information relating to such
underlying fund or investment vehicle); (iv) 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 or PFPC a
competitive advantage over its competitors or potential
competitors; (v) all confidential or proprietary concepts,
documentation, reports, data, specifications, computer
software, source code, object code, flow charts, databases,
inventions, know-how, and trade secrets, whether or not
patentable or copyrightable; (vi) information regarding fees
of competitors of PFPC paid by the Fund or its service
providers; and (vii) anything designated as confidential.
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(b) Notwithstanding the foregoing, information shall not be
subject to the confidentiality obligations set forth in this
Section 7 if it: (i) is already known to the receiving party
at the time it is obtained; (ii) is or becomes publicly known
or available through no wrongful act of the receiving party;
(iii) is rightfully received from a third party who, to the
best of the receiving party's knowledge, is not under a duty
of confidentiality; (iv) is released by the protected party to
a third party without restriction; (v) is requested or
required to be disclosed by the receiving party pursuant to a
court order, subpoena, governmental or regulatory agency
request or law; (vi) is relevant to the defense of any claim
or cause of action asserted against the receiving party by the
disclosing party, provided that in such instance such
information shall remain subject to such confidentiality
obligations except insofar as it is used in such defense; or
(vii) has been or is independently developed or obtained by
the receiving party.
(c) In the event a party receives a request for or is required to
disclose Confidential Information as identified in paragraph
(b)(v) of this Section 7, the disclosing party will notify the
protected party promptly in writing within a reasonable period
of time (to the extent such notice is not prohibitted) so that
such protected party may seek a protective order or other
appropriate remedy to prevent the release of such Confidential
Information, provided, however, that nothing in this Section 7
shall require the disclosing party to fail to honor any such
request or requirement in a timely manner.
(d) Each party acknowledges that, with respect to any of its
respective employees in possession of Confidential
Information, in the event that any such employees' employment
with PFPC or the Fund is terminated, such party is responsible
for ensuring that such former employees return and/or destroy
such Confidential Information. Each party acknowledges that it
will be responsible for any disclosure or use of Confidential
Information made by its respective former employees.
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8. 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, expertise,
patents, copyrights, trade secrets, and other related legal rights
("Intellectual Property") owned by PFPC, or licensed from third parties
by PFPC and used by PFPC in connection with the services provided by
PFPC to the Fund ("PFPC Intellectual Property"). Nothing herein shall
be interpreted or construed to grant to the Fund any title or ownership
of PFPC Intellectual Property. Nothing contained herein shall be
interpreted to confer upon or grant to PFPC any right, title or
interest in any Intellectual Property belonging to or licensed by the
Fund.
9. DISASTER RECOVERY. PFPC shall maintain in effect at all times during
the term of this Agreement a commercially reasonable disaster recovery
plan. Without in any way limiting the foregoing, PFPC shall enter into
and shall maintain in effect with appropriate parties one or more
agreements making reasonable provisions for emergency use of electronic
data processing equipment to the extent appropriate equipment is
available. In the event of equipment failures, PFPC shall, at no
additional expense to the 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
beyond its reasonable control, provided such loss or interruption is
not caused by PFPC's own willful misfeasance, bad faith, negligence or
reckless disregard of its duties or obligations under this Agreement
and PFPC has otherwise complied with this Section 9.
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10. COMPENSATION.
(a) As compensation for services rendered by PFPC during the term
of this Agreement, the Fund will pay to PFPC a fee or fees as
may be agreed to in writing by the Fund and PFPC.
(b) The Fund hereby represents and warrants to PFPC that (i) the
terms of this Agreement, and (ii) the fees and expenses
associated with this Agreement have been fully disclosed to
the managers of the Fund and that, if required by applicable
law, such managers have approved or will approve the terms of
this Agreement, and any such fees and expenses. The
representations and warranties contained in clauses (ii) and
(iii) of the preceding sentence are based on representations
and warranties that the Fund has received from PFPC and the
Adviser.
(c) PFPC hereby represents and warrants to the Fund that all the
fees and expenses associated with this Agreement are described
in this Agreement and the fee schedule accepted by the Fund
and presented to the Board of Managers for approval.
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11. INDEMNIFICATION. The Fund agrees to indemnify, defend and hold harmless
PFPC and its affiliates, including their respective officers,
directors, agents and employees, from all taxes, charges, expenses,
assessments, claims and liabilities (including, without limitation,
reasonable attorneys fees and disbursements and liabilities arising
under the Securities Laws and any state and foreign securities and blue
sky laws) arising directly or indirectly from any action or omission to
act which PFPC takes in connection with the provision of services to
the Fund pursuant to the terms and conditions of this Agreement.
Neither PFPC, nor any of its affiliates, shall be indemnified against
any liability (or any expenses incident to such liability) caused by
PFPC's or its affiliates' own willful misfeasance, bad faith,
negligence or reckless disregard in the performance of PFPC's
activities under this Agreement. The provisions of this Section 11
shall survive termination of this Agreement.
12. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action on behalf of
the Fund except to the extent necessary to fulfill its duties
and obligations specified in this Agreement or as may be
specifically agreed to by PFPC and the Fund in a written
amendment hereto. PFPC shall be obligated to exercise
reasonable care and diligence in the performance of its duties
hereunder and to act in good faith in performing services
provided for under this Agreement. PFPC shall be liable only
for any damages arising out of PFPC's failure to perform its
duties under this Agreement to the extent such damages arise
out of PFPC's willful misfeasance, bad faith, gross negligence
or reckless disregard of such duties.
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(b) Notwithstanding anything in this Agreement to the contrary,
but subject to its obligations under Section 9 of this
Agreement, (i) PFPC shall not be liable for losses, delays,
failure, errors, interruption or loss of data occurring
directly or indirectly by reason of circumstances beyond its
reasonable control, including without limitation acts of God;
action or inaction of civil or military authority; public
enemy; war; terrorism; riot; fire; flood; sabotage; epidemics;
labor disputes; civil commotion; interruption, loss or
malfunction of utilities, transportation, computer or
communications capabilities; insurrection; elements of nature;
or non-performance by a third party; provided that PFPC has
used reasonable efforts to minimize the impact of any of the
foregoing on its ability to fully perform its obligations
hereunder; and (ii) PFPC shall not be under any duty or
obligation to inquire into and shall not be liable for the
validity or invalidity, authority or lack thereof, or
truthfulness or accuracy or lack thereof, of any Oral
Instruction or Written Instruction that PFPC reasonably
believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
neither party nor their affiliates shall be liable for any
consequential, special or indirect losses or damages, whether
or not the likelihood of such losses or damages was known by
them.
(d) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
(e) The provisions of this Section 12 shall survive termination of
this Agreement.
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(f) Notwithstanding anything in this Agreement to the contrary,
PFPC shall have no liability either for any error or omission
of any of its predecessors as servicer on behalf of the Fund
or for any failure to discover any such error or omission. The
parties acknowledge that certain services have been provided
by PFPC or its affiliates prior to the date of this Agreement
and that for purposes of this paragraph (f) PFPC and its
affiliates shall not be deemed as a predecessor as servicer
and, therefore, this paragraph (f) shall not limit PFPC's
liability for its own errors or omissions as provided for
under the terms of this Agreement.
13. DESCRIPTION OF REGULATORY ADMINISTRATION SERVICES ON A CONTINUOUS
BASIS. PFPC will perform the following regulatory administration
services if required with respect to the Fund:
(i) Prepare and coordinate with the Fund's counsel one or
more (subject to PFPC's availability) post-effective
amendments to the Fund's registration statement on an
annual basis, as needed, and coordinate with the Fund's
financial printer to file such amendments with the SEC;
(ii) Assist in completing fidelity bond and directors' and
officers'/errors and omissions insurance applications
and obtaining premium quotations for the Fund;
(iii) Monitor the Fund's assets to assure adequate fidelity
bond coverage is maintained;
(iv) Draft agendas and resolutions for Board and committee
(held on the same day as Board meetings or within a
reasonable period of time before or after Board
meetings) meetings and draft written consents of the
Board;
(v) Coordinate the preparation, assembly and mailing of
materials for Board and committee meetings;
(vi) Attend Board and committee meetings and draft minutes
thereof;
(vii) Maintain the Fund's compliance calendar to assure
compliance with various Securities Laws (with respect
to compliance with the CEA, PFPC will file Section 4.5
notice filings only) filing and Board approval and Fund
implementation deadlines;
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(viii) Assist the Fund in the handling of SEC and other
regulatory examinations and responses thereto;
(ix) 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;
(x) Maintain, in accordance with applicable Securities
Laws, the Fund's Organizational Documents, agreements
and prior meeting minutes to the extent provided by the
Fund;
(xi) Communicate significant regulatory developments to the
Fund, the Board and the Fund's investment adviser on a
periodic basis;
(xii) Assist in preparing and coordinating the SEC filings
required for tender offers and assist in preparing and
filing with the SEC Form N-CSR, Form N-PX (provided the
records are received in a format as agreed upon by the
parties), Form N-SAR (to the extent the Fund is an
accounting and administration client of PFPC), fidelity
bond filings, Rule 497 filings, and Form N-Q and other
routine filings;
(xiii) Prepare notice and proxy statement for one or more
Meetings of Members, as called by the Board, from time
to time;
(xiv) Such other services as the parties agree upon in
writing; and
(xv) Provide an informational memorandum on the requirements
of Section 16 beneficial ownership reports upon
request.
14. DURATION AND TERMINATION.
(a) The term of this Agreement is for an initial term beginning
from January 1, 2005 and continuing through the close of
business two (2) years thereafter (the "Initial Term"). Upon
the expiration of the Initial Term, this Agreement will
automatically renew and shall be effective indefinitely
thereafter unless terminated as provided herein.
Notwithstanding the foregoing, either party may terminate this
Agreement (i) effective at the end of the Initial Term by
providing written notice to the other party of its intent not
to renew not less than ninety (90) days prior to the
expiration of the Initial Term or (ii) after the expiration of
the Initial Term providing not less than ninety (90) days
prior written notice to the other party. In the event the Fund
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 PFPC of a type that are
reimburseable by the Fund hereunder, will be borne by the
Fund. In the event PFPC gives notice of termination pursuant
to this Section 14(a), 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) will be borne by
PFPC.
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(b) If a party hereto fails in any material respect to perform its
duties and obligations hereunder (a "Defaulting Party"), or if
a representation and warranty of a party hereof becomes untrue
or inaccurate in any material respect, the other party (the
"Non-Defaulting Party") may give written notice thereof to the
Defaulting Party, and if such material breach shall not have
been remedied within thirty (30) days after such written
notice is given, then the Non-Defaulting Party may terminate
this Agreement by giving thirty (30) days' written notice of
such termination to the Defaulting Party. In all cases,
termination by the Non-Defaulting Party shall not constitute a
waiver by the Non-Defaulting Party of any other rights it
might have under this Agreement or otherwise against the
Defaulting Party. In the event the Fund dissolves, liquidates
or merges into another entity at any time during the Initial
Term or thereafter, the Fund shall be entitled to terminate
this Agreement, without penalty, upon 30 days' written notice
to PFPC. In the event this Agreement is terminated pursuant to
this Section 14(b), 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) will be borne by the
Defaulting Party.
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(c) Upon occurrence of any of the following events, the party not
subject to such event shall have the right to immediately
terminate this Agreement upon written notice to the other
party: (i) either party ceases doing (or gives notice of
ceasing to do) business and its business is not continued by
another corporation or entity who has agreed to assume its
obligations, (ii) either party becomes insolvent or files for
or becomes a party to any involuntary bankruptcy, receivership
or similar proceeding, and such involuntary proceeding is not
dismissed within forty-five (45) calendar days after filing,
or (iii) either party makes an assignment for the benefit of
creditors.
(d) In the event the Fund gives notice of termination, PFPC
promptly shall (i) deliver all originals of the Fund's books,
records, materials, Confidential Information and all other
Fund documents to the Fund or to such other party as may be
designated by the Fund, or (ii) at the Fund's request, destroy
all originals and copies of such information in PFPC's
possession (whether in paper, electronic or machine-readable
format) and certify such destruction in writing to the Fund.
Notwithstanding the foregoing, PFPC may keep copies of any
information PFPC is required to maintain under applicable
Federal or state law or regulation.
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15. CHANGE OF CONTROL. In addition to the termination rights provided in
Section 14, in the event of an agreement to enter into a transaction
that would result in a Change of Control of the Adviser during the
Initial Term, the Fund may terminate the Agreement during the Initial
Term upon 180 days written notice to PFPC. Any termination that would
occur on or after the expiration of the Initial Term will be subject to
Section 14 and not this Section 15.
16. INFORMATION SECURITY.
(a) PFPC warrants that it has enacted and maintains an information
security program, as such may be amended from time to time
(the "Program"). The Program has been implemented by PFPC to
assist clients with compliance with their information security
obligations. Additional provisions relating to the Program are
set forth in Addendum A attached hereto and made a part
hereof. PFPC acknowledges that it is bound by and will comply
at all times with the requirements of the Program. PFPC shall
make reasonable efforts to assist the Fund and its investment
adviser and its affiliates to comply with the Fund's own
policies for information protection.
(b) PFPC regularly and on special request will provide for the
Fund reasonable reports on implementation of the Program.
17. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or such
other address as PFPC may inform the fund in writing); (b) if to the
Fund, at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Director
of Fund Administration & Operation, Alternative Investment Group, with
a copy to the Fund, at Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000,
Attention: Secretary; or (c) if to neither of the foregoing, at such
other address as shall have been given by like notice to the sender of
any such notice or other communication by the other party. All notices
and other communications, including Written Instructions but excluding
Oral Instructions, shall be in writing or by confirming telegram,
cable, telex, or facsimile sending device. If notice is sent by
confirming telegram, cable, telex or facsimile sending device, it shall
be deemed to have been given immediately. If notice is sent by
first-class mail, it shall be deemed to have been given three (3) days
after it has been mailed. If notice is sent by messenger or courier, it
shall be deemed to have been given on the day it is delivered.
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18. 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.
19. ASSIGNMENT; DELEGATION. PFPC may assign its rights and delegate its
duties hereunder to any majority-owned direct or indirect subsidiary of
PFPC or of The PNC Financial Services Group, Inc., provided that PFPC
gives the Fund sixty (60) days prior written notice of such assignment
or delegation, and provided further that any such assignee or successor
agrees to be bound by all of the terms and conditions applicable to
PFPC hereunder.
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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21. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
22. 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 Fund agrees
to provide PFPC with prior notice of any modifications to its
registration statement or the adoption of any policies which
would affect materially the obligations or responsibilities of
PFPC hereunder. Notwithstanding anything in Section 14 to the
contrary, upon receipt of such notice and for a commercially
reasonable time thereafter (not to exceed ten (10) business
days after receipt of such notice), PFPC shall have the right
to terminate this Agreement upon sixty (60) days' prior
written notice to the Fund.
(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) LEGAL ADVICE. Notwithstanding any provision hereof, the
services of PFPC are not, nor shall they be, construed as
constituting legal advice or the provision of legal services
for or on behalf of the Fund or any other person.
(e) INFORMATION. The Fund will provide such information and
documentation as PFPC may reasonably request in connection
with services provided by PFPC to the Fund.
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(f) GOVERNING LAW. This Agreement shall be deemed to be a contract
made in Delaware and governed by Delaware law without regard
to principles of conflict of law.
(g) PARTIAL INVALIDITY. If any provision of this Agreement shall
be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be
affected thereby.
(h) 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.
(i) NO REPRESENTATIONS OR WARRANTIES. Except as expressly provided
in this Agreement, PFPC hereby disclaims all representations
and warranties, express or implied, made to the Fund 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.
(j) FACSIMILE SIGNATURES. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------
Title: Senior Vice President
---------------------
BACAP ALTERNATIVE MULTI-STRATEGY FUND, LLC
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
--------------------------
Title: President
--------------------------
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Addendum A
Addendum A
Information Security and Privacy
1. Information Security Program
1.1 PFPC acknowledges that the Fund, the Adviser and/or its affiliates
(collectively, "Bank of America")is required to comply with the
information security standards required by law and regulation for
information protection. PFPC shall make reasonable efforts to assist
Bank of America to so comply.
1.2 PFPC warrants that it has enacted and maintains an Information
Security Program whose governance process derives directly from its
parent, PNC Bank, and which is under continuous parent, regulatory and
audit scrutiny. The program is designed to:
1.2.1 Ensure the security, integrity and confidentiality of
Program Information;
1.2.2 Protect against any anticipated threats or hazards to
the security or integrity of such information; and
1.2.3 Protect agains unauthorized access to or use of such
information.
The program is intended to fulfill these objectives both for
information maintained in computerized systems and for information
printed or displayed on other physical media.
"Program Information" shall mean all Bank of America consumer and
Customer Information, including data entered into PFPC's system or
those of its agents and contractors by any Bank of America consumer or
customer in connection with PFPC's services to Bank of America, as well
as all other Confidential Information of Bank of America except that
which (a) PFPC rightfully has in its possession when Bank of America
discloses it; (b) PFPC independently develops; (c) is or becomes known
to the public other than by breach of this Addendum A; or (d) is
rightfully received by PFPC from a third party without the obligation
of confidentiality.
1.3 PFPC's information security program shall contain at least those
elements agreed to by PFPC and the Fund in writing. The Fund may
request PFPC to make any modifications to PFPC's information security
program or to the procedures and practices thereunder. Notwithstanding
the foregoing, PFPC may, in its sole discretion, decline to make any
such requested modification.
1.4 Reporting and Audits.
1.4.1 Upon prior written notice during normal business hours, Fund
personnel or Fund agents, e.g., external audit consultants, may
annually, or more frequently as requested by a regulator, audit or
inspect PFPC's information security program and facilities to
assure Bank of America's data are adequately protected. will
determine the scope of such audits, which may extend to other PFPC
resources (other systems, environmental support, recovery
processes, etc.) used to support the systems and Program
Information handling. The Fund shall maintain the confidentiality
of any information obtained as a result of such audit or
inspection.
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1.4.2 PFPC acknowledges and agrees that regulatory agencies may
audit PFPC's performance at any time during normal business hours.
The audit may include both methods and results under this Addendum
A.
1.4.3 Upon the Fund's request, PFPC shall deliver to the Fund
within 30 days after its receipt by its Board of Managers a copy of
any information relevant to Bank of America contained in a SAS 70
or any final report completed by any third-party auditors retained
by PFPC, which contains information relevant to Bank of America and
this Addendum A.
1.5 PFPC shall insure that all independent contractors and other
persons and entities whose services are part of the services PFPC
delivers to the Fund and who hold Program Information are required to
keep such Program Information confidential.
1.6 PFPC shall review the effectiveness of its information security
program at least annually and shall revise its program in light of any
relevant changes in technology, the sensitivity, nature and quantity of
the Program Information it holds, internal or external threats to
information and PFPC's own changing business arrangements.
1.7 PFPC shall establish and maintain contingency plans, recovery plans
and proper risk controls to ensure PFPC's continued performance under
this Addendum A. The plans shall include, but not be limited to, the
items called for in the Section captioned "Recovery" in Appendix A
attached hereto. PFPC shall provide copies of the plans to the Fund
upon request, provided that PFPC shall be permitted to remove any
confidential or proprietary information. If the Fund objects in writing
to any provision of such plans and controls, PFPC shall respond in
writing within 60 days, explaining, among other matters PFPC wishes to
include in its response, any actions PFPC intends to take to cure the
Fund's objection.
2. Rights in Information
2.1 All Program Information and any results of processing Program
Information or derived in any way therefrom shall at all times remain
the property of Bank of America. Upon the Fund's request, PFPC shall
return within a reasonable and mutually agreed-upon interval a copy of
all Program Information then stored or held by PFPC, including archival
or history files in a format reasonably satisfactory to Bank of
America. Within a reasonable and mutually agreed-upon interval after
PFPC ceases providing its services to the Fund, PFPC shall return to
the Fund or, with the Fund's written prior consent, destroy all Program
Information in the possession or under the direct or indirect control
of PFPC.
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2.2 PFPC shall use due care in processing and handling all Program
Information. PFPC shall have responsibility for and bear all risk of
loss or damage to Program Information and damages resulting from
improper or inaccurate processing of such data arising from the gross
negligence or willful misconduct of PFPC, its agents, contractors or
employees.
3. Time of the Essence
If PFPC fails to carry out the obligations herein to the Fund's
reasonable satisfaction or to do so on the schedules called for, the
Fund may terminate this Agreement for material breach.
4. With respect to Program Information and the services provided to or on
behalf of the Fund, PFPC shall comply with all applicable rules and
regulations relating to a protecting the confidentiality of customer
data.
All capitalized terms used in this Addendum A that are not defined herein shall
have the meanings assigned elsewhere in this Agreement.
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APPENDIX A
INFORMATION SECURITY PLAN COMMITMENTS
1. Protection
1.1 PFPC shall, upon the reasonable written request of the Fund,
provide a copy of PFPC's security plan. This plan, at a minimum, shall
prescribe the architecture of PFPC's system, Program Information
placement within the system, the security controls in place (e.g.
firewalls, web page security, intrusion detection, incident response
process, etc.) and contain the information called for below. The plan
shall also describe physical security measures in place to protect
Program Information received or processed by PFPC.
1.2 PFPC shall use a reasonable control process to ensure that access
to its systems and to Program Information is controlled and recorded.
Upon request, PFPC shall notify the Fund of any planned system
configuration changes or other changes (i) affecting the security plan
applicable to Program Information and (ii) that are not improvements or
general in nature.
1.3 As mutually agreed in writing, PFPC and the Fund, the Fund or its
service providers may conduct security vulnerability (penetration)
testing on any PFPC external website that the Fund uses or has access
to in connection with PFPC's provision of services under this
Agreement.
1.4 PFPC will take reasonable precautions to prevent the unintended or
malicious loss, destruction or alteration of the Fund's files, Program
Information, software and other property received and held by PFPC.
PFPC shall maintain back-up files (including off-site back-up copies)
thereof and of resultant output to facilitate their reconstruction in
the case of such loss, destruction or alteration, in order to insure
uninterrupted Services.
2. Detection
2.1 PFPC shall monitor its system and its procedures for security
breaches, violations and suspicious (questionable) activity. This
includes suspicious external activity (including, without limitation,
unauthorized probes, scans or break-in attempts) and suspicious
internal activity (including, without limitation, unauthorized system
administrator access, unauthorized changes to its system or network,
system or network misuse or Program Information theft or mishandling).
PFPC shall notify the Fund of any material security breaches, including
without limitation unauthorized access attempts and service attacks,
e.g., denial of service attacks, that involve Program Information.
25
2.2 PFPC shall allow the Fund and its Adviser to inspect the physical
system equipment, operational environment and Program Information
handling procedures with reasonable prior written notice during normal
business hours.
2.3 PFPC shall maintain for a mutually agreed-upon length of time, and
afford the Fund reasonable access to, all system records and logs
pertaining to systems housing Program Information. Bank of America may
review and inspect any record of system activity or Program Information
handling with reasonable prior written notice. PFPC acknowledges and
agrees that records of system activity and of Program Information
handling may be evidence (subject to appropriate chain of custody
procedures) in the event of a security breach or other inappropriate
activity.
3. Response
3.1 PFPC shall notify the Fund, through Bank of America's defined
security escalation channel, the Bank of America of America Computing
Incident Response Team ("BACIRT"), in the event of a material breach of
security. Such notification shall be just secondary in precedence to
PFPC's required notification of such events to the PNC Computer
Emergency Response and Forensics Team ("CERF") as required by the
master agreement between PFPC and PNC.
3.2 PFPC shall cooperate fully with all Bank of America security
investigation activities, but shall of necessity abide by the PNC CERF
guidelines for escalation and control of significant security
incidents.
3.3 PFPC shall monitor industry-standard information channels (bugtraq,
CERT, OEMs, etc.) for newly identified system vulnerabilities regarding
the technologies and services provided to the Fund and use reasonable
efforts to fix or patch any material, identified security problem in a
timely manner. Unless otherwise expressly agreed in writing, "timely"
shall mean that PFPC shall introduce such fix or patch as soon as
commercially reasonable after PFPC becomes aware of the security
problem. This obligation under this Section 3.3 extends to all devices
that comprise PFPC's system (e.g., application software, databases,
servers, firewalls, routers and switches, hubs, etc.) that process or
store any Program Information, and to all of PFPC's other Program
Information handling practices.
4. Recovery
4.1 PFPC shall establish and maintain policies and procedures relevant
to contingency plans, recovery plans and proper risk controls to ensure
PFPC's continued performance under this Agreement. These policies and
procedures shall include, but not be limited to, recovery strategy,
documented recovery plans covering all areas of operations necessary to
delivering PFPC's services pursuant to this Agreement, vital records
protection and testing plans. The plans shall provide, without
limitation, for off-site backup of critical data files, Program
Information, software, documentation, forms and supplies as well as
alternative means of transmitting and processing Program Information.
26
4.2 The recovery strategy shall provide for recovery after both short
and long term disruptions in facilities, environmental support and data
processing equipment. Although short term outages can be protected with
redundant resources and network diversity, the long term strategy must
allow for total destruction of PFPC's business operations for a period
of six months or longer.
4.3 Upon request, PFPC shall notify the Fund of any changes to PFPC's
recovery objectives (time to full restoration and amount of lost data
tolerated). The Fund acknowledges that PFPC's recovery objectives (as
of the date of this Agreement) meet Bank of America's standards. The
Fund agrees to notify PFPC if Bank of America's recovery objective
standards change. In the event of a change to Bank of America's
recovery objective standards, the parties agree to determine if it is
necessary for PFPC to match new objectives, and if so determined, the
date after which PFPC shall match Bank of America's new objectives.
4.4 PFPC shall continue to provide service to the Fund if Bank of
America activates its contingency plan or moves to an interim site to
conduct its business, including during tests of Bank of America's
contingency operations plans.
4.5 PFPC shall provide to Bank of America, at an interval determined by
PFPC's Resiliency Program, copies of all contingency exercise results,
in a format determined by PFPC. If requested, PFPC shall allow Bank of
America, at its own expense, to observe a contingency test.
4.6 If PFPC provides electronic interchange of data with Bank of
America, with reasonable advance notice PFPC shall participate, if
requested, in an annual Bank of America data center exercise to
validate recovery connectivity.
5. Information PFPC Shall Provide
5.1 At the Fund's request, PFPC shall meet with the Bank of America's
Information Security team to discuss information security issues in
much greater detail at times reasonably requested by Bank of America
and in a mutually agreeable location and manner. Bank of America
recognizes that PFPC may rely upon subject matter experts of its parent
company, PNC Bank, and that such subject matter experts may attend such
meetings. PFPC shall discuss in detail and provide detailed information
regarding the following topics, which shall be addressed in PFPC's
overall Information Security Program. Bank of America acknowledges and
agrees that the information PFPC so provides is PFPC's Confidential
Information, as defined in this Agreement, and is valuable proprietary
information of PFPC, and as such Bank of America shall handle all such
information in accordance with Section 7 of the Agreement.
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5.2 Security Plan Features
5.2.1 Visio Diagrams. The diagrams shall show the detail of the
system architecture including, without limitation, the logical
topology of routers, switches, Internet firewalls, management or
monitoring firewalls, servers (web, application and database),
intrusion detection systems, network and platform redundancy. The
diagrams shall include all pertinent hosting environments,
including those provided by PFPC's subcontractors.
5.2.2 Firewalls. State the specifications of the firewalls in use.
Who manages them? Specify the services, tools and connectivity
required to manage the firewalls.
5.2.3 Intrusion Detection Systems. Describe the intrusion detection
system ("IDS") environment and the security breach and event
escalation process. Who manages the IDS environment? Specify the
services, tools and connectivity required to manage the IDS
environment. Is the IDS network or host based?
5.2.4 Change Management. Describe the change management process for
automated systems used to provide services. Describe the process
for information handling policies and practices.
5.2.3 Business Continuity. Describe the business and technical
disaster recovery management process.
5.2.4 System Administration Access Control. Describe the positions
that perform administration functions on servers, firewalls or
other devices within the application and network infrastructure.
What level of access is needed to perform functions? What are the
access control mechanisms? Are access reports generated and
reviewed periodically? Describe methods used to track/log the usage
of each account.
5.25 [Reserved]
5.2.6 Access to Program Information in Human-Perceptible Forms.
Describe policies, procedures and controls used to protect Program
Information when it is printed or in other perceptible forms. How
and how often are these policies, procedures reviewed and tested?
What methods are used to ensure destruction of Program Information
on hard copy?
5.2.7 Operating System Baselines. Describe PFPC's operating system
security controls and configurations. Examples: OS services that
have been removed because not required by PFPC's services to Bank
of America. Current OS fixes that have not been applied, if any.
28
5.2.8 Encryption. Describe in detail the technology and usage of
encryption for protecting Program Information, including passwords
and authentication information, during transit and in all forms and
locations where it may be stored.
5.2.9 Application and Network Management. Specify the services,
tools and connectivity required to manage the application and
network environment. Who carries out the management functions? What
level of physical security applies to managed devices?
5.2.10 Physical Security. For each location where Program
Information will be processed or stored or services for Bank of
America produced by PFPC, describe in detail the arrangements in
place for physical security.
5.2.11 Privacy: Describe PFPC's privacy and security policies. Are
they in writing? Are they compatible with Bank of America's?
5.2.13 Location of Servers. Are web servers on a separate segment
of the network from the application and database servers? If not,
explain the reason this has not been done. At Bank of America's
request, PFPC shall make reasonable efforts to create this
separation.
6. Miscellaneous
6.1 All capitalized terms used in this Appendix A that are not defined
herein shall have the meanings assigned elsewhere in this Agreement or
those commonly assigned in information technology industry practice.
6.2 Captions used in this Appendix A are for convenience only and shall
not be used to construe this Appendix.
