Exhibit (2)(k)(1)
ADMINISTRATION, ACCOUNTING AND INVESTOR SERVICES AGREEMENT
THIS AGREEMENT is made as of June 30, 2005 by and between XXXXXXXXXX
PARTNERS, 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
WHEREAS, the Fund wishes to retain PFPC to provide certain
administration, accounting, regulatory administration and investor 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) "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 Fund and any
other person duly authorized by the Fund's Board of 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 both parties hereto.
(d) "BOARD OF MANAGERS" shall have the same meaning as set forth
in the Fund's limited liability company agreement (the "LLC
Agreement").
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "MEMBER" shall have the same meaning given such term in the
LLC Agreement.
(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. PFPC may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via
electronic mail as Oral Instructions.
(h) "ORGANIZATIONAL DOCUMENTS" means the Fund's charter or
articles of incorporation, LLC Agreement, bylaws, confidential
memorandum and other documents constituting the Fund.
(i) "SEC" means the Securities and Exchange Commission.
(j) "SECURITIES LAWS" means the 1933 Act, the 1934 Act, the 1940
Act and the CEA.
(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 electronically (with respect to
sub-item (ii) above) or by hand, mail, tested telegram, cable,
telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC to provide administration,
accounting, regulatory administration and investor services to the
Fund, in accordance with the terms set forth in this Agreement. 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 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.
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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. 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 Board of Managers or
Members, 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) 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.
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, 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 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).
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(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.
(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 or from counsel and which PFPC believes, in good faith,
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 (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.
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. 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.
(b) PFPC shall keep the following records:
(i) all books and records with respect to the Fund's
books of account; and
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(ii) records of the Fund's securities transactions.
7. 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 and their respective
subsidiaries and affiliated companies; (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 Confidential Information and shall not be
subject to such confidentiality obligations if: (a) it is already known
to the receiving party at the time it is obtained; (b) it is or becomes
publicly known or available through no wrongful act of the receiving
party; (c) it 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) it is released by the protected party to a third
party without restriction; (e) it is requested or required to be
disclosed by the receiving party pursuant to a court order, subpoena,
governmental or regulatory agency request or law (provided the
receiving party will provide the other party written notice of the
same, to the extent such notice is permitted); (f) it is relevant to
the defense of any claim or cause of action asserted against the
receiving party; (g) release of such information is necessary in
connection with PFPC's provision of services under this Agreement; or
(h) it has been or is independently developed or obtained by the
receiving party.
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8. LIAISON WITH ACCOUNTANTS. PFPC shall act as liaison with the Fund's
independent public accountants and shall provide account analyses,
fiscal year summaries, and other audit-related schedules with respect
to the Fund. PFPC shall take all reasonable action in the performance
of its duties under this Agreement to assure that the necessary
information is made available to such accountants for the expression of
their opinion, as required by the Fund.
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 Fund.
10. 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 to
the extent appropriate equipment is available. In the event of
equipment failures, PFPC shall, at no additional expense to the Fund,
take reasonable steps to minimize service interruptions. PFPC shall
have no liability with respect to the loss of data or service
interruptions caused by equipment failure, provided such loss or
interruption is not caused by PFPC's own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties or
obligations under this Agreement.
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11. COMPENSATION.
(a) As compensation for services set forth herein that are
rendered by PFPC during the term of this Agreement, the Fund
will pay to PFPC a fee or fees as may be agreed to in writing
by the Fund and PFPC.
(b) The undersigned hereby represents and warrants to PFPC that
(i) the terms of this Agreement, (ii) the fees and expenses
associated with this Agreement, and (iii) any benefits
accruing to PFPC or to the adviser or sponsor to the Fund in
connection with this Agreement, including but not limited to
any fee waivers, conversion cost reimbursements, up front
payments, signing payments or periodic payments made or to be
made by PFPC to such adviser or sponsor or any affiliate of
the Fund relating to this Agreement have been fully disclosed
to the Board of Managers of the Fund and that, if required by
applicable law, such Board of Managers have approved or will
approve the terms of this Agreement, any such fees and
expenses, and any such benefits.
(c) PFPC shall establish certain cash management accounts
("Service Accounts") required to provide services under this
Agreement. The Fund acknowledges (i) PFPC may benefit,
directly or indirectly, from sweeping the funds in such
Service Accounts into investment accounts maintained at an
affiliate or client of PFPC; (ii) balance credits earned with
respect to the amounts in such Service Accounts ("Balance
Credits") will be used to offset the banking service fees
imposed by the cash management service provider (the "Banking
Service Fees"); (iii) PFPC shall retain any excess Balance
Credits for its own use; and (iv) Balance Credits will be
calculated and applied toward the Fund's Banking Service Fees
regardless of the Service Account balance sweep described in
Sub-Section (i).
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12. INDEMNIFICATION.
(a) 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, 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.
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, gross negligence or reckless disregard
in the performance of PFPC's activities under this Agreement.
Any amounts payable by the Fund hereunder shall be satisfied
only against the relevant portfolio's assets and not against
the assets of any other investment portfolio of the Fund.
(b) PFPC agrees to indemnify, defend and hold harmless the Fund
from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, attorneys' fees
and disbursements and liabilities to the extent arising under
the Securities Laws and any states and foreign securities and
blue sky laws) provided that such liability was caused by
PFPC's or its affiliates' own willful misfeasance, bad faith,
gross negligence or reckless disregard of its duties and
obligations under this Agreement. This indemnification shall
be the Fund's sole remedy under this Agreement.
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(c) The provisions of this Section 12 shall survive termination of
this Agreement.
13. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action on behalf of
the Fund except as specifically set forth herein or as may be
specifically agreed to by PFPC and the Fund in a written
amendment hereto. PFPC shall be obligated to exercise care and
diligence in the performance of its duties hereunder and to
act in good faith in performing services provided for under
this Agreement. 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.
(b) Notwithstanding anything in this Agreement to the contrary,
(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; 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
instruction, direction, notice, instrument or other
information which PFPC reasonably believes to be genuine.
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(c) Notwithstanding anything in this Agreement (whether contained
anywhere in Sections 14-16 or otherwise) to the contrary, the
Fund hereby acknowledges and agrees that (i) PFPC, in the
course of reporting portfolio performance hereunder, may rely
upon PFPC's interpretation of relevant circumstances (as
determined by PFPC) 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
such reliance except to the extent such loss or damage is
substantially due to PFPC's gross negligence or willful
misconduct.
(d) Notwithstanding anything in this Agreement to the contrary,
neither PFPC 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
PFPC or its affiliates .
(e) No party may assert a cause of action against PFPC or any of
its affiliates that allegedly occurred more than 24 months
immediately prior to the filing of the suit (or, if
applicable, commencement of arbitration proceedings) alleging
such cause of action.
(f) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
(g) The provisions of this Section 13 shall survive termination of
this Agreement.
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(i) 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.
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS. PFPC will
perform the following accounting services with respect to the Fund:
(i) Journalize investment, capital and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when
received from the investment manager for the
portfolio (the "Investment Manager") and, with
respect only to those portfolios that invest
principally in U.S. domestic securities, transmit
trades to such portfolio's custodian(s) for proper
settlement;
(iii) Maintain individual ledgers for investment
securities;
(iv) Maintain historical transaction activity for each
underlying investment fund;
(v) Record and reconcile underlying investment fund
capital changes with the Fund's Investment Manager;
(vi) Reconcile cash and investment balances of the Fund
with the Fund's custodian(s), and provide the
Investment Manager with the beginning cash balance
available for investment purposes.
(vii) Calculate contractual expenses, including management
fees and incentive allocation, as applicable, in
accordance with the Fund's confidential memorandum;
(ix) Post to and prepare the Statement of Assets and
Liabilities and the Statement of Operations in U.S.
dollar terms;
(x) Monitor the expense accruals and notify and officer
of the Fund of any proposed adjustments;
(xi) Control all disbursements and authorize such
disbursements from the Fund's account with the
custodian(s) upon Written Instructions;
(xii) Calculate capital gains and losses;
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(xiii) Determine net income;
(xiv) Obtain monthly valuations from the underlying
investment funds and calculate the market value in
accordance with the applicable valuation policies or
guidelines provided by the Fund to PFPC, provided
that PFPC does not inform the Fund that it is either
unable or unwilling to comply with such policies or
procedures;
(xv) Transmit or mail a copy of the monthly portfolio
valuation to the Investment Manager;
(xvi) Arrange for the computation of the net asset value in
accordance with the provisions of the Fund's LLC
Agreement and confidential memorandum; and
(xvii) As appropriate, compute total return, expense ratios,
and portfolio turnover rate.
15. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS. PFPC will
perform the following administration services if required with respect
to the Fund:
(i) Prepare monthly security transaction listings;
(ii) Supply various normal and customary Fund statistical
data as requested on an ongoing basis;
(iii) Prepare and file the Fund's Annual and Semi-Annual
Reports with the SEC on Form N-SAR via XXXXX;
(vi) Prepare the Fund's annual and semi-annual shareholder
reports, (including N-CSR) and Forms N-Q and N-PX
(provided that the Fund's voting record is provided
to PFPC in the format designated by PFPC), and
coordinate with the Fund's financial printer the
filing of Forms N-CSR, N-Q and N-PX with the SEC;
(vii) Copy the Fund's Board of Managers on routine
correspondence sent to Members;
(viii) Prepare and coordinate with the Fund's counsel an
annual Post-Effective Amendment to the Fund's
Registration Statement (other than adding a new
series or class) on Form N-2, as needed, and
coordinate with the Fund's financial printer to make
such filing with the SEC;
(ix) Assist administratively in obtaining the fidelity
bond and directors' and officers'/errors and
omissions insurance policies for the Fund in
accordance with the requirements of Rule 17g-1 and
17d-1(d)(7) under the 1940 Act as such bond and
policies are approved by the Fund's Board of
Managers;
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(x) Coordinate the filing of the Fund's fidelity bond
with the SEC;
(xi) Draft agendas and resolutions for quarterly Board
meetings and draft written consents of the Board;
(xii) Coordinate the preparation, assembly and mailing of
quarterly Board materials;
(xiii) Attend organizational and quarterly Board meetings
and draft minutes thereof;
(xiv) Draft agenda for organizational board meeting;
(xv) Maintain a calendar for the Fund that shall list
various SEC filing and Board approval deadlines;
(xvi) Assist the Fund in the handling of SEC examinations
and responses thereto;
(xvii) Perform such additional administrative duties
relating to the administration of the Fund as may
subsequently be agreed upon in writing between the
Fund and PFPC; and
(xviii) Provide compliance policies and procedures related to
services provided by PFPC and, if mutually agreed,
certain PFPC affiliates, summary procedures thereof
and an annual certification letter.
All regulatory services are subject to the review and approval of Fund
counsel.
16. DESCRIPTION OF INVESTOR SERVICES ON A CONTINUOUS BASIS. PFPC will
perform the following functions:
(i) Maintain the register of Members and enter on such
register all issues, transfers and repurchases of
interests in the Fund;
(ii) Arrange for the calculation of the issue and
repurchase prices of interests in the Fund in
accordance with the Fund's LLC Agreement;
(iii) Allocate income, expenses, gains and losses to
individual Members' capital accounts in accordance
with the Fund's LLC Agreement;
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(iv) Calculate the Incentive Allocation in accordance with
the Fund's LLC Agreement and reallocate corresponding
amounts from the applicable Members' accounts to the
Adviser's account; and
(v) Mail Fund offering materials to prospective investors
in accordance with instructions from an Authorized
Person.
17. DURATION AND TERMINATION.
(a) The term of this Agreement is for an initial term beginning
from the date of this Agreement and continuing through the
close of business one (1) year thereafter (the "Initial
Term"). Upon the expiration of the Initial Term, this
Agreement will automatically renew for successive terms of one
(1) year ("Renewal Terms"). Either Party may terminate this
Agreement effective at the end of the Initial Term or any
Renewal Term by providing written notice to the other party of
its intent not to renew. Notice of termination must be
received not less than ninety (90) days prior to the
expiration of the Initial Term or the then current Renewal
Term. 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,
will be borne by the Fund.
(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 sixty (60) days after such written notice
is given, then the Non-Defaulting Party may terminate this
Agreement by giving sixty (60) days' written notice of such
termination to the Defaulting Party. Termination of this
Agreement by the Non-Defaulting Party shall not constitute a
waiver of any other rights or remedies with respect to
obligations of the parties prior to such termination or rights
of PFPC to be reimbursed for all of its out-of-pocket expenses
and its normal monthly fees or other obligations due it. 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.
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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.
19. 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 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx Xxxxx 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. 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.
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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. ASSIGNMENT. PFPC may assign its rights 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 thirty (30) days' prior
written notice of such assignment.
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 their agreement, if any, with respect to
delegated duties. 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.
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(b) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees
not to make any modifications to its registration statement or
adopt any policies which would affect materially the
obligations or responsibilities of PFPC hereunder without the
prior written approval of PFPC, which approval shall not be
unreasonably withheld or delayed.
(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) INFORMATION. The Fund will provide such information and
documentation as PFPC may reasonably request in connection
with services provided by PFPC to the 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.
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(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 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.
(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 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: /S/ XXXXXX XXXXX
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Title: Vice President
XXXXXXXXXX PARTNERS, LLC
By: XXXXXXXXXXX X. XXXXX
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Title: Secretary/Treasurer
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