ADMINISTRATION , ACCOUNTING AND INVESTOR SERVICES AGREEMENT
THIS AGREEMENT is made as of January 24, 2001 by and between GAM AVALON
MULTI-EUROPE, L.P., a Delaware limited partnership (the "Partnership"), and
PFPC INC., a Massachusetts corporation ("PFPC"). W I T N E S S E T H : WHEREAS,
the Partnership 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 Partnership wishes to retain PFPC to provide certain
administration, accounting 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 Partnership and any other
person duly authorized by the Partnership's directors to give Oral
Instructions and Written Instructions on behalf of the Partnership. 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) "CEA" means the Commodities Exchange Act, as amended.
(e) "General Partner" and "Limited Partners" shall have the same meaning
given such term in the Partnership's limited partnership agreement (as
hereinafter defined).
(f) "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.
(g) "Organizational Documents" means the Partnership's limited partnership
agreement ("Limited Partnership Agreement"), bylaws, offering
memorandum and other documents constituting the Partnership.
(h) "SEC" means the Securities and Exchange Commission.
(i) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(j) "Written Instructions" means (i) written instructions signed by an
Authorized Person or a person reasonably believed by PFPC to be 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 Partnership hereby appoints PFPC to provide administration,
accounting and investor services to the Partnership, 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 Partnership has provided or, where applicable,
will provide PFPC with the following:
(a) certified or authenticated copies of the resolutions of the
Partnership's directors, approving the appointment of PFPC or its
affiliates to provide services and approving this Agreement;
(b) a copy of the Partnership's most recent effective registration
statement on Form N-2 under the 1940 Act, as filed with the SEC;
(c) a copy of all of the Partnership's Organizational Documents;
(d) a copy of any distribution agreement with respect to the Partnership;
(e) a copy of any additional administration agreement with respect to the
Partnership;
(f) a copy of any investor servicing agreement made with respect to the
Partnership; 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 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 as are
specified in writing by the Partnership to PFPC and agreed in writing by PFPC.
Except as specifically set forth herein, PFPC assumes no responsibility for such
compliance by the Partnership.
5. 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 Partnership's directors or
Limited Partners, unless and until PFPC receives Written Instructions
to the contrary.
(c) The Partnership 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. Where
Oral Instructions or Written Instructions reasonably appear to have
been received from an Authorized Person, PFPC shall incur no liability
to the Partnership 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 Partnership. 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
Partnership.
(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, without limitation, be counsel for the Partnership, the
Partnership's investment adviser or PFPC, at the option of PFPC),
provided such counsel is selected with reasonable care.
(c) Conflicting Advice. In the event of a conflict between directions,
advice or Oral Instructions or Written Instructions PFPC receives from
the Partnership, and the advice PFPC receives from counsel , PFPC may
rely upon and follow the advice of such counsel. PFPC shall promptly
inform the Partnership of such conflict and, in any event, before
taking the action in question. If PFPC relies on the advice of
counsel, PFPC will remain liable for any action or omission on the
part of PFPC which constitutes wilfull misfeasance, bad faith, gross
negligence or reckless disregard by PFPC of any duties, obligation 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 Partnership or from
counsel selected with reasonable care and which PFPC believes, in good
faith, to be consistent with those directions, advice and 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
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. PFPC will remain liable for any action or omission on the part
of PFPC which constitutes wilful misfeasance, bad faith, gross
negligence or reckless disregard by PFPC of any duties, obligation or
responsibilities set forth in this Agreement.
7. Records; Visits.
(a) The books and records pertaining to the Partnership, which are in the
possession or under the control of PFPC, shall be the property of the
Partnership. Such books and records shall be prepared and maintained
as required by the 1940 Act and other applicable securities laws,
rules and regulations. The Partnership 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 Partnership,
copies of any such books and records shall be provided by PFPC to the
Partnership or to an Authorized Person, at the Partnership'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 Partnership's books of
account;
(ii) records of the Partnership's securities transactions; and
(iii)records supporting the calculation of Partnership performance as
required pursuant to Rule 31a-1 of the 1940 Act in connection
with the services of PFPC provided hereunder.
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, non-public personal information of Limited Partners, customer
lists, sales estimates, business plans, and internal performance results
relating to the past, present or future business activities of the Partnership
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 Partnership 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, except for non-public personal information of any Partnership Limited
Partner, 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 released by the protected party to a third party without
restriction; (d) 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); (e) is relevant to
the defense of any claim or cause of action asserted against the receiving
party; or (f) has been or is independently developed or obtained by the
receiving party. Any Information rightfully received from a third party who, to
the best of the receiving party's knowledge,
is not under a duty of confidentiality, shall not be subject to the
confidentiality obligations set forth above.
9. Liaison with Accountants. PFPC shall act as liaison with the Partnership's
independent public accountants and shall provide account analyses, fiscal year
summaries, and other audit-related schedules with respect to the Partnership.
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
Partnership.
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 Partnership.
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 to the extent appropriate
equipment is available. In the event of equipment failures, PFPC shall, at no
additional expense to the Partnership, 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 set forth herein that are
rendered by PFPC during the term of this Agreement, the Partnership will pay to
PFPC a fee or fees as may be agreed to in writing by the Partnership and PFPC.
13. Indemnification. The Partnership agrees to indemnify 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 in
connection with the provision of services to the Partnership. 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 of its
duties and obligations under this Agreement. Notwithstanding anything in this
Agreement to the contrary, the Partnership shall not be liable to PFPC or its
affiliates for any consequential, special or indirect losses or damages which
PFPC or its affiliates may incur or suffer, whether or not the likelihood of
such losses or damages was known by the Partnership.
14. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action on behalf of the
Partnership except as specifically set forth herein or as may be
specifically agreed to by PFPC and the Partnership 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 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, including without limitation (subject to Section
11) 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 of care set forth in Section 14 (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 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.
(d) No party may assert a cause of action against PFPC or any of its
affiliates that is discovered (or in the exercise of reasonable care
should have been discovered) more than 12 months immediately prior to
the filing of the suit (or, if applicable, commencement of arbitration
proceedings) alleging such cause of action; provided that this Section
14 (d) will not extend the time for asserting a cause of action
against PFPC or any of its affiliates which is applicable under any
applicable statute of limitations.
(e) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
15. Description of Accounting Services on a Continuous Basis.
PFPC will perform the following accounting services:
(i) Journalize investment, capital and income and expense activities;
(ii) Verify investment buy/sell trade tickets when received from the
investment adviser (the "Adviser") and, with respect only to U.S.
domestic securities, transmit trades to the Partnership's custodian(s)
for proper settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Record and reconcile corporate action activity and all other capital
changes;
(vi) Reconcile cash and investment balances of the Partnership with the
Partnership's custodian(s)/prime broker(s), and provide the Adviser
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
Partnership's confidential memorandum;
(viii) Post to and prepare the Statement of Assets and Liabilities and the
Statement of Operations in U.S. dollar terms;
(ix) Monitor the expense accruals and notify and officer of the Partnership
of any proposed adjustments;
(x) Control all disbursements and authorize such disbursements upon
Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine net income;
(xiii) Determine applicable foreign exchange gains and losses on payables
and receivables;
(xiv)Obtain daily security market quotes and currency exchange rates from
independent pricing services approved by the Adviser, or if such
quotes are unavailable, then obtain such prices from the Adviser, and
in either case calculate the market value of the Partnership's
investments in accordance with the applicable valuation policies or
guidelines provided by the Partnership to PFPC and acceptable to PFPC;
(xv) Transmit or mail a copy of the portfolio valuation to the Adviser on
basis as agreed upon depending upon valuation of underlying funds;
(xvi)Arrange for the computation of the net asset value in accordance with
the provisions of the Partnership's offering memorandum; and
(xvii) Prepare an annual financial statement, which will include the
following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Partners' Capital
16. Description of Administration Services on a Continuous Basis. PFPC will
perform the following administration services if required:
(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 Partnership's Federal Form
1065 and state tax returns;
(iv) Prepare and file the Partnership's Annual and Semi-Annual Reports
with the SEC on Form N-SAR via XXXXX;
(v) Prepare and coordinate printing of the Partnership's annual and
semi-annual shareholder reports and other reports as required by
applicable laws, rules and regulations; and
(vi) Perform such additional administrative duties relating to the
administration of the Partnership as may subsequently be agreed upon
in writing between the Partnership and PFPC.
17. Description of Investor Services on a Continuous Basis. PFPC will perform
the following functions:
(i) Maintain the register of Limited Partners and enter on such
register all issues, transfers and repurchases of interests in
the Partnership
(ii) Arrange for the calculation of the issue and repurchase prices of
interests in the Partnership in accordance with the Partnership's
Limited Partnership Agreement;
(iii)Allocate income, expenses, gains and losses to individual
Partners' capital accounts in accordance with the Partnership's
Limited Partnership Agreement;
(iv) Calculate the Incentive Allocation in accordance with the
Partnership's Limited Partnership Agreement and reallocate
corresponding amounts from the applicable Limited Partners'
accounts to the General Partner's account;
(v) Mail tender offer documents to investors for purposes of
executing repurchases.
(vi) Prepare and mail annually to Limited Partners a Form K-1 in
accordance with applicable tax regulations;
(vii)Mail Partnership offering materials to prospective investors in
accordance with instructions from an Authorized Person; and
(viii) Review client subscription documentation for completeness and
forward to the General Partner for review and execution.
18. Duration and Termination. This Agreement shall be effective on the date
first written above and shall continue for a period of two (2) years from such
date, and thereafter shall automatically continue for successive annual periods,
provided that this Agreement may be terminated by either party effective on any
anniversary of the date first written above (other than the first anniversary)
by providing at least sixty (60) days' prior written notice. Notwithstanding the
above, the Partnership may terminate this Agreement upon a material breach by
PFPC, provided, however, that in the event of such breach, the Partnership must
first notify PFPC of such breach and its intention to terminate and allow PFPC
30 days from receipt of notice of a material breach to cure such breach. The
Partnership may not terminate for material breach if PFPC cures such breach
within the 30 day period. In the event the Partnership 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
successive service provider, if there are more than one), and all trailing
expenses incurred by PFPC, will be borne by the Partnership.
19. Notices. All notices and other communications, including Written
Instructions but excluding Oral Instructions, shall be in writing or by
confirming telegram, cable, telex or facsimile sending device. If notice is sent
by confirming telegram, cable, telex or
facsimile sending device, it shall be deemed to have been given immediately. If
notice is sent by first-class mail, it shall be deemed to have been given 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: __________________________; (b) if to the Partnership, at
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attn: Xxxxxx Xxxxxxxx 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 (i) PFPC gives the Partnership 30
days prior written notice of such assignment or delegation and (ii) PFPC and
such delegate (or assignee) provide such information as the Fund may reasonably
request.
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.
(b) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Partnership
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) 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.
(e) 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.
(f) 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) No Representations or Warranties. Except as expressly provided in
this
Agreement, PFPC hereby disclaims all representations and
warranties, express or implied, made to the Partnership 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.
(h) 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: /s/ Xxxxxxx Xxxxx
Title: Executive Vice President
GAM AVALON MULTI-EUROPE, L.P.
By: /s/ Xxxxx X. Xxxxxxxxxxx
Title: Vice President and Treasurer
of GAM Multi-Europe, L.P.
