EXHIBIT Item 24(2)(k)(1)
ADMINISTRATION, ACCOUNTING AND INVESTOR SERVICES AGREEMENT
THIS AGREEMENT is made as of , 2004 by and among MULTI-STRATEGY HEDGE
OPPORTUNITIES LLC, a Delaware limited liability company (the "Investment Fund"),
XXXXXXX XXXXX INVESTMENT MANAGERS LLC, a limited liability company ("Adviser"),
and PFPC Inc., a Massachusetts corporation ("PFPC").
W I T N E S S E T H :
WHEREAS, the Investment 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 Investment Fund wishes to retain PFPC to provide
administration, accounting and investor services as provided for herein, and
PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions. As Used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Investment Fund or its
investment adviser, Xxxxxxx Xxxxx Investment Managers, LLC. and any
other person duly authorized by the Investment Fund or the Adviser
to give Oral Instructions and/or Written Instructions with respect
to the Investment Fund. An Authorized Person's scope of authority
may be limited by setting forth such limitation in a written
document signed by both parties hereto.
(d) "Board" means the Board of Directors of the Investment Fund.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "Investment Advisers Act" means the Investment Advisers Act of 1940,
as amended.
(g) "Member" shall have the same meanings as set forth in the Investment
Fund's First Amended and Restated Limited Liability Company
Agreement, as amended (the "LLC Agreement").
(h) "Xxxxxxx Xxxxx" means Xxxxxxx Xxxxx & Co., Inc. or any affiliate
thereof.
(i) "Organizational Documents" means, (a) in the case of the Adviser,
the by-laws, operating agreement, or other documents constituting
the Adviser; and (b) in the case of the Investment Fund, the LLC
Agreement, the certificate of formation, and/or other documents
constituting the Investment Fund.
(j) "Oral Instructions" mean oral instructions received by PFPC from an
Authorized Person. Instructions PFPC receives from an Authorized
Person via electronic mail shall be considered as Oral Instructions.
(k) "SEC" means the Securities and Exchange Commission.
(l) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940 Act,
the Investment Advisers Act and the CEA and the rules and
regulations promulgated under such acts.
(m) "Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by PFPC or (ii) trade instructions
transmitted (and received by PFPC) by means of an electronic
transaction reporting system access to which requires use of a
password or other authorized identifier. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or facsimile
sending device.
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2. Appointment. The Investment Fund hereby appoints PFPC to provide
administration, accounting and investor services, in accordance with the
terms set forth in this Agreement and in accordance with the procedures,
policies and standards set forth in an operating memorandum to be agreed
upon by PFPC, the Investment Fund and the Adviser, as such may be amended
from time to time (the "Operating Memorandum"). PFPC accepts such
appointment and agrees to furnish such services.
3. Compliance with Rules and Regulations. PFPC undertakes to comply with the
applicable requirements of the Securities Laws, and in addition any other
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
compliance by the Adviser or the Investment Fund with such laws.
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 Instruction or Written
Instruction it receives from an Authorized Person (or from a person
reasonably believed in good faith 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 of
the Investment Fund or of any vote, resolution or proceeding of the
Investment Fund's Board of Directors or Members, as the case may be,
unless and until PFPC receives Written Instructions to the contrary.
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(c) The Investment Fund agrees to forward to PFPC Written Instructions
confirming Oral Instructions (except where such Oral Instructions
are given by PFPC or its 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 provided that any action (or
inaction) by PFPC based on such Oral Instructions was reasonable and
performed (or omitted) prior to receiving confirming Written
Instructions. Without prejudice to the foregoing, where PFPC is
aware of a material discrepancy between Oral Instructions and
confirming Written Instructions, PFPC shall promptly notify the
Investment Fund and the Adviser of such discrepancy. Where Oral
Instructions or Written Instructions reasonably appear to have been
received from an Authorized Person, PFPC shall incur no liability to
the Investment Fund in acting upon such Oral Instructions or Written
Instructions provided that PFPC's actions are reasonable and comply
with the other provisions of this Agreement. For the avoidance of
doubt, it is acknowledged and agreed that this Agreement may not be
modified or amended by an Oral Instruction.
5. Right to Receive Advice.
(a) Advice of the Investment Fund or the Adviser. If PFPC is in doubt as
to any action it should or should not take, PFPC may request
directions or advice,
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including Oral Instructions or Written Instructions, from the
Investment Fund or the Adviser acting in its capacity as investment
adviser to the Investment 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
at its own cost request advice from counsel of its own choosing (who
may be counsel for the Investment Fund, the Adviser, or PFPC, at the
option of PFPC).
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC receives
from the Investment Fund, and the advice it receives from counsel,
PFPC may, in good faith, rely upon and follow the advice of counsel,
provided that reasonable prior written notice has been given to the
Investment Fund. The Investment Fund shall, upon receipt of such
notice, promptly and timely notify PFPC in writing of its agreement
or disagreement to any actions or any omissions to act PFPC proposes
to take pursuant to counsel's advice. In the event where the
Investment Fund has timely notified PFPC in writing of its
disagreement, PFPC and the Investment Fund shall consult with each
other in good faith to reach agreement on the actions or omissions
that are the subject of the Investment Fund's objection. In the
event where, after such consultations, PFPC and the Investment Fund
are unable to agree on the actions or omissions in question, PFPC
shall consult independent counsel reasonably acceptable to the
Investment Fund, and may follow and rely upon the advice of such
independent counsel.
(d) Protection of PFPC. PFPC shall be protected in any action it takes
or does not take in reliance upon directions or advice or Oral
Instructions or Written
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Instructions it receives from the Investment Fund or from counsel
(if taken in accordance with the provisions of the paragraph (c)
hereof) and which PFPC reasonably believes to be consistent with
those directions or advice or Oral Instructions or Written
Instructions. Nothing in this section shall be construed so as to
impose an obligation upon PFPC to seek such 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 section shall relieve PFPC
of any liability arising out of its willful misfeasance, bad faith,
negligence or reckless disregard in the performance of its duties
hereunder.
6. Records; Visits.
(a) The books and records pertaining to the Investment Fund which are in
the possession or under the control of PFPC shall, as between PFPC
and the Investment Fund, be the property of the Investment Fund and
shall be returned to the Investment Fund upon request.
Notwithstanding the foregoing, PFPC shall retain copies of such
books and records as required to comply with applicable Securities
Laws. Such books and records
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shall be prepared and maintained as required by the Securities Laws
and any other applicable laws, rules and regulations. The Investment
Fund, its counsel, auditors, and such employees of the Adviser or
other units of Xxxxxxx Xxxxx as the Investment Fund indicates in
writing to PFPC are authorized by the Investment Fund, shall have
access to such books and records at all times during PFPC's normal
business hours. Upon the reasonable request of the Investment Fund,
copies of any such books and records shall be provided by PFPC to
the Investment Fund or to an Authorized Person, at the Investment
Fund's or a third party's expense. Any such books or records may be
maintained in the form of electronic media and stored on any
magnetic disk or tape or similar recording method provided, that
such maintenance and storage are effected in a manner compliant with
the applicable Securities Laws.
(b) PFPC shall keep the following records:
(i) all books and records with respect to the Investment Fund's
books of account; and
(ii) records of the Investment Fund's securities or other
transactions.
PFPC may, subject to the provisions of the applicable Securities
Laws, house these records in a third party storage facility provided
that PFPC shall in all respects remain responsible for the
safe-keeping of such records. PFPC shall use commercially reasonable
efforts to assure that adequate back-up is made of all data stored
on electronic media and that any third party storage facility
maintains adequate security as provided in the first sentence of
paragraph (c) hereof.
(c) PFPC will maintain and enforce safety and physical security
procedures: (a) that are at least equal to industry standards for
such types of locations; and (b) which provide commercially
reasonably appropriate technical and organizational safeguards
against accidental or unlawful destruction, loss, alteration and
unauthorized disclosure of or access to information and all other
data owned by the Adviser or the Investment Fund and accessible by
PFPC under this Agreement (the "Information"). Without limiting the
generality of the foregoing, PFPC will take commercially reasonable
measures to secure and defend its location and equipment against
"hackers" and others who may seek, without authorization, to
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modify or access any Information contained on an internet website
maintained by PFPC ("Website") or any other electronic storage
system without the consent of the Adviser and to correct the Website
or any other electronic storage system to its original form in the
event that it is modified without the consent of the Adviser. PFPC
will periodically test the Website and related hosting environment,
and cooperate with the Adviser in its or its agents' testing
thereof, for potential areas where security could be breached. PFPC
will report to the Adviser immediately any breaches of security or
unauthorized access to the Website or any other electronic storage
system that PFPC detects. PFPC will use its diligent efforts to
remedy such breach of security or unauthorized access in a timely
manner and notify the Adviser what the remedy was and provide detail
of that remedy.
7. Confidentiality; Privacy.
(a) 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 Adviser, the
Investment 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
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commercially valuable and secret in the sense that its
confidentiality affords the Adviser, the Investment 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 specifically designated in
writing as confidential. Notwithstanding the foregoing, information
shall not be subject to such confidentiality obligations if it: (a)
is already lawfully 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 prior (if practicable under
the circumstances) to disclosing such information to the extent such
notice is permitted); or (f) has been or is independently developed
or obtained by the receiving party without reference to or use of
the disclosing party's information.
(b) Notwithstanding any provision herein to the contrary, each party
hereto agrees that any Nonpublic Personal Information, as defined
under Section 248.3(t) of Regulation S-P ("Regulation S-P"),
promulgated under the Xxxxx-Xxxxx-Xxxxxx Act (the "Act"), disclosed
by a party hereunder is for the specific purpose of
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permitting the other party to perform the services set forth in this
Agreement. Each party agrees that, with respect to such information,
it will comply with Regulation S-P and the Act and that it will not
disclose any Nonpublic Personal Information received in connection
with this Agreement to any other party, except to the extent as
necessary to carry out the services set forth in this Agreement, and
as consistent with such other party's privacy notice to its
customers, or as otherwise permitted by Regulation S-P or the Act.
8. Cooperation with Accountants. PFPC shall cooperate with the Investment
Fund's independent public accountants and shall provide account analyses,
fiscal year summaries, and other audit-related schedules with respect to
the Investment Fund. Upon reasonable notice to PFPC, the Investment Fund's
independent accountants (or such other accounting firms as the Investment
Fund may select) may audit the internal accounting controls and procedures
employed by PFPC in the performance of the services required hereunder.
PFPC shall take all reasonable action in the performance of its duties
under this Agreement to assure that the necessary information is made
available to such accountants for the expression of their opinion, as
required by the Investment Fund and shall make any other requested
information available to such accountants as reasonably requested by the
Investment Fund or the Adviser.
9. 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 Investment Fund to the
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extent PFPC had lawful title to such items prior to the date of this
Agreement or subsequently attains such title.
10. Disaster Recovery.
(a) PFPC shall maintain in a separate and safe place additional copies
of all records required to be maintained pursuant to this Agreement
or additional tapes, disks or other sources of information necessary
to reproduce all such records.
(b) PFPC shall maintain a disaster recovery back-up facility available
for its use in providing the services required hereunder in the
event PFPC is not able to process the necessary work at its
principal facility. PFPC shall, from time to time, upon request from
the Investment Fund provide written evidence and details of its
arrangement with respect to such back-up facility. PFPC further
agrees to provide the Investment Fund from time to time on
reasonable request with a copy of its disaster recovery and
contingency plans and to make its staff available to discuss such
plans on reasonable request. Nothing in this section shall relieve
PFPC of any liability that it might otherwise have under this
Agreement that arise out of its willful misfeasance, bad faith,
negligence or reckless disregard in the performance of its duties
hereunder.
(c) PFPC shall employ a commercially reasonable virus detection software
program to test the on-site hardware and software applications
utilized by PFPC to deliver the services required hereunder to
determine that such hardware and software does not contain any
computer code designed to disrupt, disable, harm, or otherwise
impede operation.
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(d) Upon request of the Investment Fund, PFPC shall from time to time as
appropriate, furnish to the Investment Fund or the Adviser a letter
generally describing the insurance coverage maintained by PFPC, any
material changes in such coverage which may have occurred from the
date of the last such request and any claim relating to the
Investment Fund which PFPC may have made under such insurance.
11. Compensation. As compensation for services set forth herein that are
rendered by PFPC during the term of this Agreement, the Investment Fund
will pay to PFPC a fee or fees as may be agreed to in writing by the
Investment Fund and PFPC.
12. Indemnification.
(a) The Investment Fund agrees to indemnify and hold harmless PFPC and
its affiliates from all charges, reasonable 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) (collectively, "Losses") arising from any action or omission
to act which PFPC or its affiliates takes in connection with the
provision of services hereunder to the Investment Fund, except that
neither PFPC, nor any of its affiliates, shall be indemnified
against any Losses to the extent caused by PFPC's or its affiliates'
own willful misfeasance, bad faith, negligence or reckless disregard
of its duties and obligations under this Agreement.
(b) PFPC agrees to indemnify and hold harmless the Investment Fund from
all Losses arising from any action or omission which PFPC or its
affiliates take in connection with the provision of services
hereunder to the Investment Fund, to the
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extent caused by an action or omission that is negligent, is made in
bad faith, or constitutes willful misfeasance or reckless disregard
of PFPC's duties under this Agreement.
(c) If any party hereto (the "Indemnified Party") shall seek
indemnification from any other party (the "Indemnifying Party") in
respect of a claim or liability asserted by a third party, the
Indemnified Party shall give written notice thereof to the
Indemnifying Party promptly after it receives notice of the claim or
liability being asserted, but the failure to do so shall not relieve
the Indemnifying Party from such liability except to the extent that
it is prejudiced by the failure or delay in giving such notice. Such
notice shall summarize the basis for the claim for indemnification
and any claim or liability being asserted by the third party. Within
15 days after receiving such notice the Indemnifying Party shall
give written notice to the Indemnified Party stating whether it
disputes the claim for indemnification and whether it will defend
against the third party claim or liability at its own cost and
expense. If the Indemnifying Party fails to give notice that it
disputes an indemnification claim within 15 days after receipt of
notice thereof (or fails to seek a reasonable extension of its time
to reply), it shall be deemed to have accepted and agreed to the
claim. The Indemnifying Party shall be entitled to direct the
defense against the third party claim or liability with counsel
selected by it (subject to the consent of the Indemnified Party,
which consent shall not be unreasonably withheld) as long as the
Indemnifying Party is conducting a good faith and diligent defense.
The Indemnified Party shall at all times have the right to
participate in the defense of a third party claim or liability at
its own expense
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directly or through counsel. If no such notice of intent to dispute
and defend a third party claim or liability is given by the
Indemnifying Party, or if such good faith and diligent defense is
not being or ceases to be conducted by the Indemnifying Party, the
Indemnified Party shall have the right, at the expense of the
Indemnifying Party, to undertake the defense of such claim or
liability (with counsel selected by the Indemnified Party), and to
compromise or settle it, exercising reasonable business judgment.
Except as otherwise provided in the immediately preceding sentence,
neither the Indemnified Party nor the Indemnifying Party shall
settle or confess any claim or make any compromise in any case in
which the Indemnifying Party will be asked to indemnify the
Indemnified Party, except with prior written consent of both
parties. The Indemnified Party shall at all times make available
such information and assistance as the Indemnifying Party may
reasonably request and shall cooperate with the Indemnifying Party
in such defense, at the expense of the Indemnifying Party.
13. Responsibility of PFPC.
(a) PFPC shall be under no duty hereunder to take any action on behalf
of the Adviser or the Investment Fund except as specifically set
forth herein or as may be specifically agreed to by PFPC, the
Adviser and the Investment Fund in the Operating Memorandum or a
written amendment hereto. PFPC shall be obligated to exercise the
degree of care and diligence expected of a professional
administrator of an investment company registered under the 1940 Act
in the performance of its duties hereunder and to act in good faith
in performing services
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provided for under this Agreement. PFPC shall be liable only for any
damages, losses or reasonable expenses arising out of the failure of
PFPC or any of its affiliates to perform their duties under this
Agreement to the extent such damages arise out of PFPC's or any
affiliate's willful misfeasance, bad faith, 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, including without limitation (subject to Section
10), delays or errors or loss of data occurring by reason of
circumstances beyond PFPC's control, provided that PFPC has acted in
accordance with the standard set forth in Section 13(a) above; and
(ii) PFPC shall not be under any duty or obligation to inquire into
and shall not be liable for the validity or invalidity or authority
or lack thereof of any 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.
(c) Notwithstanding anything in this Agreement (whether contained
anywhere in Sections 14-16 or otherwise) to the contrary, the
Investment Fund hereby acknowledges and agrees that (i) PFPC, in the
course of providing tax-related services or calculating and
reporting portfolio performance hereunder, may rely upon PFPC's
interpretation of tax positions or its reasonable interpretation of
relevant circumstances (as determined by PFPC) in providing such tax
services and in determining methods of calculating portfolio
performance to be used, and that (ii) PFPC shall not be liable for
losses or damages of any kind associated with
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such reliance except to the extent such loss or damage is
substantially due to PFPC's willful misfeasance, bad faith,
negligence or reckless disregard of its duties.
(d) Notwithstanding anything in this Agreement to the contrary, without
limiting anything in the immediately preceding sentence, the
Investment Fund hereby acknowledges and agrees that PFPC shall not
be liable for any losses or damages of any kind associated with any
tax filings with which PFPC has assisted in any way except to the
extent such loss or damage is substantially due to PFPC's willful
misfeasance, bad faith, negligence or reckless disregard of its
duties; provided, however, that PFPC shall not be found to have been
negligent for losses or damages associated with areas of
responsibility that the judiciary, regulators (or other governmental
officials) or members of the hedge fund industry determine would
otherwise apply to PFPC (or similar service providers) and which, as
of the date hereof, have yet to be identified by such parties as
areas for which PFPC (or any similar service provider) is (or would
be) responsible. PFPC may, however, be found negligent for its acts
or omissions occurring after the date a responsibility has been
identified.
(e) Notwithstanding anything in this Agreement to the contrary, neither
a party hereto nor its 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.
(f) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
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14. Description of Accounting Services on a Continuous Basis. PFPC will
perform the following accounting services in accordance with applicable
generally accepted accounting principles and such time frames as shall be
mutually agreed with respect to the Investment Fund:
(i) Journalize investment, capital and income and expense activities;
(ii) Maintain individual ledgers for investment securities;
(iii) Record and reconcile corporate action activity and all other capital
changes;
(iv) Reconcile cash and investment balances with the Investment Fund's
custodian(s), and provide the Adviser with the beginning cash
balance available for investment purposes;
(v) Update the cash availability as required by the Adviser;
(vi) Calculate contractual expenses, including, but not limited to
management fees, as applicable, in accordance with the Investment
Fund's LLC Agreement or other controlling document;
(vii) Post to and prepare the Statement of Assets and Liabilities, the
Statement of Operations and Statement of Changes in
Members/Shareholders' Capital in U.S. dollar terms or, if mutually
agreed in writing with respect to the Investment Fund, in terms of
other currencies;
(viii)Monitor the expense accruals and notify an officer of the
Investment Fund or the Adviser of any proposed adjustments;
(ix) Determine net income;
(x) Determine applicable foreign exchange gains and losses on payables
and receivables;
(xi) Obtain underlying fund valuations from fund investments and, if
unable to obtain valuations, notify the Adviser;
(xii) Transmit or mail a copy of the portfolio valuation to the Adviser;
(xiii)Arrange for the computation of the net asset value in accordance
with the provisions of the Investment Fund's LLC Agreement and
prospectus;
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(xiv) Prepare an annual and, if requested, a quarterly or semi-annual
financial statement, which will include the following items and
notes thereto:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Members'/Shareholder's Capital; and
(xv) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average
dollar?weighted maturity.
15. Description of Administration Services on a Continuous Basis. PFPC will
perform the following administration services with respect to the
Investment Fund:
(i) Prepare monthly security transaction listings;
(ii) Supply various normal and customary partnership statistical data as
requested on an ongoing basis;
(iii) Prepare for execution and file the Investment Fund's Federal form
1065 and state tax returns;
(iv) Prepare and file the Investment Fund's Annual and Semi-Annual
Reports with the SEC on Form N-SAR via XXXXX;
(v) Coordinate printing of the Investment Fund's annual and semi-annual
Member reports; and
(vi) Perform such additional administrative duties relating to the
administration of the Investment Fund as may subsequently be agreed
upon in writing between the Adviser, the Investment Fund and PFPC.
16. Description of Investor Services on a Continuous Basis. PFPC will perform
the following functions with respect to the Investment Fund:
(i) Maintain the register of the Members and enter on such register all
issues, transfers and repurchases of interests in the Investment
Fund;
(ii) Arrange for the calculation of the issue and repurchase prices of
interests in the Investment Fund in accordance with its LLC
Agreement or other controlling document;
(iii) Prepare promissory notes promptly after the close of the tender
period;
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(iv) Prepare tender offer notices and perform all work associated with
tender offers;
(v) Allocate income, expenses, gains and losses to the individual
Members capital accounts in accordance with the Investment Fund's
LLC Agreement or other controlling document;
(vi) Prepare and mail annually to the each Member any required Form K-1
in accordance with applicable tax regulations.
17. Duration and Termination.
(a) This Agreement shall continue until terminated by the Investment
Fund, the Adviser or PFPC. Except in the case of termination
pursuant to paragraph (b) hereof, termination shall take effect upon
no less than 120 days' written notice given by one party to the
other. All expenses associated with movement (or duplication) of
records and materials and conversion thereof to a successor service
provider (or each successive service provider, if there are more
than one), and all trailing expenses incurred by PFPC, will be borne
by the Investment Fund or a third party on behalf of the Investment
Fund, except that if this Agreement is terminated because of PFPC's
material breach pursuant to paragraph (b)(i) below, PFPC shall bear
its own expenses.
(b) Either party will have the right to terminate this Agreement
forthwith and without penalty on written notice to the other party
at any time if:
(i) any party commits a material breach of this agreement and
fails to take appropriate steps to remedy such breach within
30 days of being notified of such breach; or
(ii) the other party is declared bankrupt, enters into a
composition with creditors, obtains a suspension of payment,
is put under court controlled management or is the subject of
a similar measure.
(c) PFPC shall cooperate in all respects with any transfer of its
functions hereunder to a successor service provider and in
particular shall provide such successor service provider or the
Investment Fund or Adviser, as the Investment Fund or Adviser
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shall direct, all records, whether in hard copy or electronic form,
that PFPC has maintained pursuant to this Agreement. PFPC shall
provide such post-termination assistance as the Investment Fund or
the Adviser may reasonably request for a period of 180 days from the
date of termination. PFPC shall be entitled to charge the Investment
Fund or Adviser for such assistance at its standard time and
materials rate.
18. Representations and Warranties.
(a) Each party represents and warrants that:
(i) it is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or
establishment;
(ii) it has full authority and power, and has obtained all
necessary authorizations and consents, to engage in the
activities contemplated by this Agreement;
(iii) this Agreement is a legal, valid and binding obligation,
enforceable in accordance with its terms and it has full power
and authority to enter into and has taken all necessary
corporate action to authorize the execution and delivery of
this Agreement;
(iv) no legal or administrative actions have been instituted or
threatened which would impair its ability to perform its
obligations under this Agreement;
(v) its entrance into this Agreement shall not cause a material
breach or be in material conflict with any other agreement or
obligation or any law or regulation applicable to it.
(b) In addition, the Investment Fund represents and warrants that the
Adviser is duly authorized to act on behalf of the Investment Fund
and provide Oral and Written Instructions on behalf of each such
Investment Fund.
(c) PFPC shall have adopted and implemented within a reasonable period
of time prior to October 5, 2004 written policies and procedures
reasonably designed to prevent violation of the Securities Laws by
PFPC. PFPC shall provide the
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Investment fund, at such times as the Investment Fund shall
reasonably request and at PFPC's expense, with a copy of the
policies and procedures applicable to PFPC regarding the services
provided hereunder.
19. Notices. All notices and other communications, including Written
Instructions but excluding Oral Instructions, shall be in writing or by
telegram, cable, telex or facsimile sending device. If notice is sent by
telegram, cable, telex or facsimile sending device, it shall be deemed to
have been given upon confirmation of receipt. If notice is sent by
first-class mail, it shall be deemed to have been given seven days after
it has been mailed. If notice is sent by messenger, it shall be deemed to
have been given on the day it is delivered. Notices shall be addressed (a)
if to PFPC, at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, XX 00000, attn: Xxxx
Xxxxxxx, facsimile: (000) 000-0000; (b) if to the Adviser or the
Investment Fund, at Xxxxxxx Xxxxx Investment Managers, L.P., 000 Xxxxxxxx
Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, attn: Chief Administrative
Officer; or (c) if to neither of the foregoing, at such other address as
shall have been provided by like notice to the sender of any such notice
or other communication by the other party.
20. Amendments. This Agreement, or any term thereof, may be changed or waived
only by written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
21. Delegation; Assignment. PFPC may assign its rights and delegate its duties
hereunder to any majority-owned direct or indirect subsidiary of PFPC or
The PNC Financial Services Group, Inc., provided that PFPC gives the
Investment Fund and the Adviser 30 days' prior written notice of such
assignment or delegation.
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22. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
23. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
24. Miscellaneous.
(a) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof,
provided that the parties may embody in one or more separate
documents (including in the Operating Memorandum) their agreement,
if any, with respect to delegated duties.
(b) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Adviser and the
Investment Fund agree not to make any modifications to the
Investment Fund's registration statement or adopt any policies which
would affect materially the obligations or responsibilities of PFPC
hereunder without prior written notice to PFPC. If PFPC does not
object to such modifications or changes in policies within five
business days of receiving notice thereof, it shall be deemed to
have agreed to such changes.
(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.
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(d) Information. The Investment Fund will provide such information and
documentation as PFPC may reasonably request in connection with
services provided by PFPC to the Investment Fund.
(e) 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.
(f) 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.
(g) 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.
(h) No Representations or Warranties. Except as expressly provided in
this Agreement, PFPC hereby disclaims all representations and
warranties, express or implied, made to the Adviser, the Investment
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.
(i) 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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(j) Customer Identification Program Notice. To help the U.S. government
fight the funding of terrorism and money laundering activities, U.S.
Federal law requires each financial institution to obtain, verify,
and record certain information that identifies each person who
initially opens an account with that financial institution on or
after October 1, 2003. Certain of PFPC's affiliates are financial
institutions, and PFPC may, as a matter of policy, request (or may
have already requested) the Investment Fund's name, address and
taxpayer identification number or other government-issued
identification number, and, if such party is a natural person, that
party's date of birth. PFPC may also ask (and may have already
asked) for additional identifying information, and PFPC may take
steps (and may have already taken steps) to verify the authenticity
and accuracy of these data elements.
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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:
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Title:
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MULTI-STRATEGY HEDGE OPPORTUNITIES LLC
By:
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Title:
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XXXXXXX XXXXX INVESTMENT MANAGERS LLC
By:
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Title:
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