Exhibit (k)(2)
TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of _____________, 2002 by and between
PFPC INC., a Massachusetts corporation ("PFPC"), and ADVANTAGE ADVISERS
MULTI-SECTOR FUND I, a Delaware business trust (the "Fund").
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
WHEREAS, the Fund wishes to retain PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent and PFPC
wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions. As Used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
(c) "1940 Act" has the meaning set forth in the recitals hereof and
includes the rules and regulations of the SEC promulgated thereunder.
(d) "Authorized Person" means any officer of the Fund and any other
person duly authorized by the Fund's Board of Trustees to give Oral
Instructions or Written Instructions on behalf of the Fund and listed
on the Authorized Persons Appendix attached hereto and made a part
hereof or any amendment thereto as may be received by PFPC. An
Authorized Person's scope of authority may be limited by the Fund by
setting forth such limitation in the Authorized Persons Appendix.
(e) "Board of Trustees" and "Shareholders" shall have the same meanings
as set forth in the Fund's Amended and Restated Agreement and
Declaration of Trust.
(f) "Declaration of Trust" means the Fund's Amended and Restated
Agreement and Declaration of Trust, as amended from time to time.
(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) "SEC" means the Securities and Exchange Commission.
(i) "Securities Laws" mean the 1933 Act, the 1934 Act and the 1940 Act.
(j) "Shares" mean the Fund's shares of beneficial interest, $0.001 par
value per share.
(k) "Written Instructions" means (i) written instructions signed by an
Authorized Person and received by PFPC or (ii) trade instructions
transmitted (and received by PFPC) by means of an electronic
transaction reporting system access to which requires use of a
password or other authorized identifier. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or facsimile
sending device.
2. Appointment. The Fund hereby appoints PFPC to serve as
transfer agent, registrar, dividend disbursing agent and shareholder servicing
agent to the Fund in accordance with the terms set forth in this Agreement.
PFPC accepts such appointment and agrees to furnish such services.
3. Delivery of Documents. The Fund has provided or, where applicable,
will provide PFPC with the following:
(a) Certified or authenticated copies of the resolutions of the Fund's
Board of Trustees, approving the appointment of PFPC to provide
services to the Fund and approving this Agreement;
(b) A copy of the Fund's current registration statement on Form N-2;
(c) A copy of the Declaration;
(d) A copy of the Fund's investment advisory agreement pursuant to which
Advantage Advisers, LLC (or a successor thereto) provides investment
advisory services to the Fund;
(e) A copy of the distribution agreement and selling and servicing
agreement with respect to the Shares;
(f) A copy of any administration agreements; provided that, so long as an
affiliate of PFPC serves as administrator for the Fund, this
paragraph (f) will be deemed satisfied without any further action by
the Fund; and
(g) Copies (certified or authenticated where applicable) of any and all
amendments or supplements to the foregoing.
4. Compliance with Rules and Regulations. PFPC agrees 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.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Oral Instructions or Written Instructions, including standing Written
Instructions related to ongoing instructions received electronically.
(b) PFPC shall be entitled to rely upon any Oral Instruction or Written
Instruction it receives from an Authorized Person (or from a person
reasonably believed by PFPC to be an Authorized Person) pursuant to
this Agreement. PFPC may assume that any Oral Instruction or Written
Instruction received hereunder is not in any way inconsistent with
the provisions of organizational documents or this Agreement or of
any vote, resolution or proceeding of the Fund's Board of Trustees or
of the Fund's Shareholders, unless and until PFPC receives Written
Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions confirming
Oral Instructions (except where such Oral Instructions are given by
PFPC or its affiliates) and shall endeavor to ensure that PFPC
receives the Written Instructions by the close of business on the
same day that such Oral Instructions are received. The fact that such
confirming Written Instructions are not received by PFPC shall in no
way invalidate the transactions or enforceability of the transactions
authorized by the Oral Instructions. Where Oral Instructions or
Written Instructions reasonably appear to have been received from an
Authorized Person, PFPC shall incur no liability to the Fund in
acting upon such Oral Instructions or Written Instructions provided
that PFPC's actions comply with the other provisions of this
Agreement.
6. Right to Receive Advice.
(a) Advice of the Fund. If PFPC is in doubt as to any action it should or
should not take, PFPC may request directions or advice, including
Oral Instructions or Written Instructions, from the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any question of
law pertaining to any action it should or should not take, PFPC may
request advice at its own cost from such counsel of its own choosing
(who may be counsel for the Fund, the Fund's investment adviser or
PFPC, at the option of PFPC).
(c) Conflicting Advice. In the event of a conflict between directions,
advice or Oral Instructions or Written Instructions PFPC receives
from the Fund, and the advice it receives from counsel, PFPC shall be
entitled to rely upon and follow the advice of counsel. PFPC shall
promptly inform the Fund of such conflict and PFPC shall refrain from
acting in the event of a conflict unless counsel advises PFPC that a
failure to take action is likely to result in additional loss,
liability or expense. In the event PFPC relies on the advice of
counsel, PFPC remains liable for any action or omission on the part
of PFPC which constitutes willful misfeasance, bad faith, gross
negligence or reckless disregard by PFPC of any duties, obligations
or responsibilities set forth in this Agreement.
(d) Protection of PFPC. PFPC shall be protected in any action it takes or
does not take in reliance upon directions, advice or Oral
Instructions or Written Instructions it receives from the Fund or (to
the extent permitted under clause (c) above) from counsel and which
PFPC believes, in good faith, to be consistent with those directions,
advice or Oral Instructions or Written Instructions. Nothing in this
section shall be construed so as to impose an obligation upon PFPC
(i) to seek such directions, advice or Oral Instructions or Written
Instructions, or (ii) to act in accordance with such directions,
advice or Oral Instructions or Written Instructions unless, under the
terms of other provisions of this Agreement, the same is a condition
of PFPC's properly taking or not taking such action. Nothing in this
subsection shall excuse PFPC when an action or omission on the part
of PFPC constitutes willful misfeasance, bad faith, gross negligence
or reckless disregard by PFPC of any duties, obligations or
responsibilities set forth in this Agreement.
7. Records; Visits. 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 its duly authorized officers, employees and agents and the staff
of the SEC 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.
8. Confidentiality. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that is
competitively sensitive material, and not generally known to the public,
including, but not limited to, information about product plans, marketing
strategies, finances, operations, customer relationships, customer profiles,
customer lists, sales estimates, business plans, and internal performance
results relating to the past, present or future business activities of the
Fund or PFPC, their respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them; (b) any scientific or
technical information, design, process, procedure, formula, or improvement
that is commercially valuable and secret in the sense that its confidentiality
affords the Fund or PFPC a competitive advantage over its competitors; (c) all
confidential or proprietary concepts, documentation, reports, data,
specifications, computer software, source code, object code, flow charts,
databases, inventions, know-how, and trade secrets, whether or not patentable
or copyrightable; and (d) anything designated as confidential. Notwithstanding
the foregoing, information shall not be subject to such confidentiality
obligations if it: (a) is already known to the receiving party at the time it
is obtained; (b) is or becomes publicly known or available through no wrongful
act of the receiving party; (c) is rightfully received from a third party who,
to the best of the receiving party's knowledge, is not under a duty of
confidentiality; (d) is released by the protected party to a third party
without restriction; (e) is required to be disclosed by the receiving party
pursuant to a requirement of a court order, subpoena, governmental or
regulatory agency or law (provided the receiving party will provide the other
party written notice of such requirement, to the extent such notice is
permitted); (f) is relevant to the defense of any claim or cause of action
asserted against the receiving party; or (g) has been or is independently
developed or obtained by the receiving party.
9. Cooperation with Accountants. PFPC shall cooperate with the Fund's
independent public accountants and shall take all reasonable action in the
performance of its obligations under this Agreement to ensure that the
necessary information is made available to such independent public accountants
as reasonably requested by the Fund.
10. PFPC System. PFPC shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by PFPC in connection with
the services provided by PFPC to the Fund.
11. Disaster Recovery. PFPC shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable provisions
for emergency use of electronic data processing equipment. In the event of
equipment failures, PFPC shall, at no additional expense to the Fund, take
reasonable steps to minimize service interruptions. PFPC shall have no
liability with respect to the loss of data or service interruptions caused by
equipment failure, provided such loss or interruption is not caused by PFPC's
own willful misfeasance, bad faith, gross negligence or reckless disregard of
its duties or obligations under this Agreement.
12. Compensation. As compensation for services rendered by PFPC during
the term of this Agreement, the Fund will pay to PFPC a fee or fees as may be
agreed to from time to time in writing by the Fund and PFPC. The Fund
acknowledges that PFPC may receive float benefits and/or investment earnings
in connection with maintaining certain accounts required to provide services
under this Agreement.
13. Indemnification. The Fund agrees to indemnify, defend and hold
harmless PFPC and its affiliates from all taxes, charges, expenses,
assessments, claims and liabilities (including without limitation attorneys'
fees and disbursements and liabilities arising under the Securities Laws and
any state and foreign securities and blue sky laws) arising directly or
indirectly from any action or omission to act which PFPC takes (i) at the
request or on the direction of or in reliance on the advice of the Fund or
(ii) upon Oral Instructions or Written Instructions; provided, however,
neither PFPC, nor any of its affiliates, shall be indemnified against any
liability (or any expenses incident to such liability) arising out of PFPC's
or its affiliates' own willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties and obligations under this Agreement;
provided further that in the absence of a finding to the contrary the
acceptance, processing and/or negotiation of a fraudulent payment for the
purchase of Shares shall be presumed not to have been the result of PFPC's or
its affiliates own willful misfeasance, bad faith, gross negligence or
reckless disregard of such duties and obligations under this Agreement.
14. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action on behalf of the Fund
except as necessary to fulfill its duties and obligations as
specifically set forth herein or as may be specifically agreed to by
PFPC in writing. PFPC shall be obligated to exercise care and
diligence in the performance of its duties hereunder and to act in
good faith and to use its best efforts, within reasonable limits, in
performing services provided for under this Agreement. PFPC shall be
liable for any damages arising out of PFPC's failure to perform its
duties under this Agreement to the extent such damages arise out of
PFPC's willful misfeasance, bad faith, gross negligence or reckless
disregard of such duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC shall not be liable for losses
beyond its control, provided that PFPC has acted in accordance with
the standard of care set forth above; and (ii) PFPC shall not be
liable for (A) the validity or invalidity or authority or lack
thereof of any Oral Instruction or Written Instruction, notice or
other instrument which conforms to the applicable requirements of
this Agreement, and which PFPC reasonably believes to be genuine; or
(B) subject to Section 10, delays or errors or loss of data occurring
by reason of circumstances beyond PFPC's control, including acts of
civil or military authority, national emergencies, labor
difficulties, fire, flood, catastrophe, acts of God, insurrection,
war, riots or failure of the mails, transportation, communication or
power supply.
(c) Notwithstanding anything in this Agreement to the contrary, neither
PFPC nor its affiliates shall be liable to the Fund for any
consequential, special or indirect losses or damages which the Fund
may incur or suffer by or as a consequence of PFPC's or its
affiliates' performance of the services provided hereunder, whether
or not the likelihood of such losses or damages was known by PFPC or
its affiliates.
15. Description of Services.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Calculate 12b-1 payments;
(ii) Maintain shareholder registrations;
(iii) Review new applications and correspond with shareholders to
complete or correct information;
(iv) Direct payment processing of checks or wires;
(v) Prepare and certify shareholder lists in conjunction with
proxy solicitations;
(vi) Prepare and mail to shareholders confirmation of direct
activity;
(vii) Provide toll-free lines for broker-dealer use, plus customer
liaison staff for on-line inquiry response;
(viii) Mail duplicate confirmations to broker-dealers of their
clients' activity, when executed directly with PFPC;
(ix) Provide periodic shareholder lists and statistics to the
Fund;
(x) Provide detailed data for underwriter/broker confirmations;
(xi) Prepare periodic mailing of year-end tax and statement
information;
(xii) Notify on a timely basis the investment adviser, accounting
agent, and custodian of fund activity; and
(xiii) Perform other participating broker-dealer shareholder
services as may be agreed upon from time to time.
(b) Services Provided by PFPC Under Oral Instructions or Written
Instructions.
(i) Accept and post daily share purchases and redemptions;
(ii) Accept, post and perform shareholder transfers;
(iii) Pay dividends and other distributions; and
(iv) Solicit and tabulate proxies.
(c) Purchase of Shares. PFPC shall issue and credit an account of an
investor, in the manner described in the Fund's prospectus, once it
receives:
(i) A purchase order;
(ii) Proper information to establish a shareholder account; and
(iii) Confirmation of receipt or crediting of funds for such order
to the Fund's custodian.
(d) Redemption of Shares. PFPC shall redeem shares only if that function
is properly authorized by the certificate of incorporation or
resolution of the Fund's Board of Trustees. Shares shall be redeemed
and payment therefor shall be made in accordance with the Fund's
prospectus, when the recordholder tenders shares in proper form and
directs the method of redemption. If shares are received in proper
form, shares shall be redeemed before the funds are provided to PFPC
from the Fund's custodian (the "Custodian"). If the recordholder has
not directed that redemption proceeds be wired, when the Custodian
provides PFPC with funds, the redemption check shall be sent to and
made payable to the recordholder, unless:
(i) transfer authorizations are signed by the recordholder when
shares are held in book-entry form.
When a broker-dealer notifies PFPC of a redemption desired by a
customer, and the Custodian provides PFPC with funds, PFPC shall
prepare and send the redemption check to the broker-dealer and made
payable to the broker-dealer on behalf of its customer.
(e) Dividends and Distributions. Upon receipt of a resolution of the
Fund's Board of Trustees authorizing the declaration and payment of
dividends and distributions, PFPC shall issue dividends and
distributions declared by the Fund in shares, or, upon shareholder
election, pay such dividends and distributions in cash, if provided
for in the Fund's prospectus. Such issuance or payment, as well as
payments upon redemption as described above, shall be made after
deduction and payment of the required amount of funds to be withheld
in accordance with any applicable tax laws or other laws, rules or
regulations. PFPC shall mail to the Fund's shareholders such tax
forms and other information, or permissible substitute notice,
relating to dividends and distributions paid by the Fund as are
required to be filed and mailed by applicable law, rule or
regulation. PFPC shall prepare, maintain and file with the IRS and
other appropriate taxing authorities reports relating to all
dividends above a stipulated amount paid by the Fund to its
shareholders as required by tax or other law, rule or regulation.
(f) Shareholder Account Services.
(i) PFPC may arrange, in accordance with the prospectus, for
issuance of shares obtained through:
- Direct purchases through broker wire orders, checks and
applications.
(g) Communications to Shareholders. Upon timely Written Instructions,
PFPC shall mail all communications by the Fund to its shareholders,
including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Fund shares;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices;
(v) Proxy material; and
(vi) Tax form information.
In addition, PFPC will receive and tabulate the proxy cards for the
meetings of the Fund's shareholders.
(h) Records. PFPC shall maintain records of the accounts for each
shareholder showing the following information:
(i) Name, address and United States Tax Identification or Social
Security number;
(ii) Number and class of shares held;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions paid and
the date and price for all transactions on a shareholder's
account;
(iv) Any stop or restraining order placed against a shareholder's
account;
(v) Any correspondence relating to the current maintenance of a
shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for PFPC to perform any
calculations required by this Agreement.
(i) Shareholder Inspection of Stock Records. Upon a request from any Fund
shareholder to inspect stock records, PFPC will notify the Fund and
the Fund will issue instructions granting or denying each such
request. Unless PFPC has acted contrary to the Fund's instructions,
the Fund agrees to and does hereby release PFPC from any liability
for refusal of permission for a particular shareholder to inspect the
Fund's stock records.
(j) Lost Shareholders. PFPC shall perform such services as are required
in order to comply with Rules 17a-24 and 17Ad-17 of the 1934 Act (the
"Lost Shareholder Rules"), including, but not limited to, those set
forth below. PFPC may, in its sole discretion, use the services of a
third party to perform some of or all such services.
(i) documentation of search policies and procedures;
(ii) execution of required searches;
(iii) tracking results and maintaining data sufficient to comply
with the Lost Shareholder Rules; and
(iv) preparation and submission of data required under the Lost
Shareholder Rules.
Except as set forth above, PFPC shall have no responsibility for
any escheatment services.
(k) Print Mail. In addition to performing the foregoing services, the
Fund hereby engages PFPC as its exclusive print/mail service provider
with respect to those items and for such fees as may be agreed to
from time to time in writing by the Fund and PFPC.
16. Duration and Termination. This Agreement shall continue until
terminated by either party upon ninety (90) days' prior written notice to the
other party by certified mail with confirmed receipt.
17. Notices. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to the Fund,
at CIBC World Markets Corp., 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxx X. Xxxxxx 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 by the other party. If notice is sent by confirming telegram,
cable, telex or facsimile sending device, it shall be deemed to have been
given immediately. If notice is sent by first-class mail, it shall be deemed
to have been given three days after it has been mailed. If notice is sent by
messenger, it shall be deemed to have been given on the day it is delivered.
18. Amendments. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
19. Delegation; Assignment. This Agreement and any rights and duties of
the parties herein may not be assigned; provided, however, that PFPC may
assign its rights and delegate its duties hereunder at no additional cost to
the Fund to any affiliate of or any majority-owned direct or indirect
subsidiary of PFPC or of The PNC Financial Services Group, Inc., provided that
(i) PFPC gives the Fund 60 days prior written notice of such assignment; (ii)
the assignee or delegate agrees to comply with the relevant provisions of the
Securities Laws; and (iii) PFPC and such assignee or delegate promptly provide
such information as the Fund may request, and respond to such questions as the
Fund may ask, relative to the assignment or delegation (including, without
limitation, the capabilities of the assignee or delegate). Except as stated
above, this Agreement may not be assigned or delegated by any party without
the written consent of each party.
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.
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 and Oral
Instructions.
(b) Captions. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(c) Governing Law. This Agreement shall be deemed to be a contract made
in Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(d) Partial Invalidity. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(e) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(g) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
PFPC INC.
By:
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Title:
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ADVANTAGE ADVISERS MULT-SECTOR FUND I
By:
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Title:
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Business Approval By:__________________
Date:________________________________
Legal Approval By:____________________
Date:________________________________
