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Exhibit (k)(2)
ADMINISTRATION, ACCOUNTING AND INVESTOR SERVICES AGREEMENT
THIS AGREEMENT is made as of December 19, 1996 by and between
TROON PARTNERS, L.P., a Delaware limited partnership, (the "Partnership"), and
PFPC INC., a Delaware corporation ("PFPC"), which is an indirect wholly owned
subsidiary of PNC Bank Corp.
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 and accounting services 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 General
Partners to give Oral Instructions and Written Instructions on behalf of the
Partnership and listed on the Authorized Persons Appendix attached hereto and
made a part hereof or any amendment thereto as may be received by PFPC. An
Authorized Person's scope of authority may be limited by the Partnership by
setting forth such limitation in the Authorized Persons Appendix.
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(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "General Partners" and "Limited Partners" shall have
the same meanings as set forth in the Partnership's Limited Partnership
Agreement.
(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) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" means the 1933 Act, the 1934 Act,
the 1940 Act and the CEA.
(i) "Written Instructions" mean written instructions
signed by an Authorized Person and received by PFPC. 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, 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 General Partners, 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;
(c) a copy of the partnership agreement (pursuant to
which Troon Management, L.L.C., as a general partner, provides investment
advice to the Partnership);
(d) a copy of any distribution agreement with respect to
the Partnership;
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(e) a copy of any additional administration agreements;
(f) a copy of any other investor servicing agreement; 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 all 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 Partnership.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC
shall act only upon Oral Instructions and Written Instructions including
standing Written Instructions related to ongoing instructions received
electronically.
(b) PFPC shall be entitled to rely upon any Oral and
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 or Written Instruction received
hereunder is not in any way inconsistent with the provisions of organizational
documents or this Agreement or of any vote, resolution or proceeding of the
Partnership's General Partners or of the Partnership's 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) and shall endeavor to ensure that PFPC
receives the Written Instructions by the close of business on the same
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day that such Oral Instructions are received. The fact that such confirming
Written Instructions are not received by PFPC shall in no way invalidate the
transactions or enforceability of the transactions authorized by the Oral
Instructions. Where Oral Instructions or Written Instructions reasonably
appear to have been received from an Authorized Person, PFPC shall incur no
liability to the Partnership in acting upon such Oral 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.
(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 counsel. PFPC shall promptly inform the
Partnership of such conflict and PFPC shall refrain from acting in the event of
a conflict unless counsel advises PFPC that a failure to take action is likely
to result in additional loss, liability or expense. In the event PFPC relies
on the advice of counsel, PFPC remains liable for any action or omission on the
part of PFPC which constitutes willful misfeasance, bad faith, gross negligence
or reckless disregard by PFPC of any duties, obligations or responsibilities
set forth in this Agreement.
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(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 (to
the extent permitted under clause (c) above) from counsel 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,
advice or Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions, advice or Oral Instructions or Written
Instructions unless, under the terms of other provisions of this Agreement, the
same is a condition of PFPC's properly taking or not taking such action.
Nothing in this subsection shall excuse PFPC when an action or omission on the
part of PFPC constitutes willful misfeasance, bad faith, gross negligence or
reckless disregard by PFPC of any duties, obligations or responsibilities set
forth in this Agreement.
7. RECORDS; VISITS.
(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.
(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
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(iii) all other books and records as the
Partnership is required to maintain pursuant
to Rule 31a-1 of the 1940 Act in connection
with the services provided by PFPC hereunder.
8. CONFIDENTIALITY. PFPC agrees to keep confidential
all records of the Partnership and information relating to the Partnership and
its Limited Partners, unless the release of such records or information is
otherwise consented to, in writing, by the Partnership. The Partnership agrees
that such consent shall not be unreasonably withheld and may not be withheld
where PFPC may be exposed to civil or criminal contempt proceedings or when
required to divulge such information or records to duly constituted
authorities.
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. 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
auditors and accountants in a timely fashion for the expression of their
opinion, as required by the Partnership.
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 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.
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11. COMPENSATION. As compensation for services 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.
12. 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, liabilities
arising under the Securities Laws and any state or foreign securities and blue
sky laws, and amendments thereto), and expenses, including (without limitation)
reasonable attorneys' fees and disbursements arising directly or indirectly
from any action or omission to act which PFPC takes (i) at the request or on
the direction of or in reliance on the advice of the Partnership or (ii) upon
Oral Instructions or Written Instructions; Provided, however, neither PFPC,
nor any of its affiliates, shall be indemnified against any liability (or any
expenses incident to such liability) arising out of PFPC's or its affiliates
own willful misfeasance, bad faith, gross negligence or reckless disregard of
its duties and obligations under this Agreement.
13. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action on
behalf of the Partnership except as necessary to fulfill its duties and
obligations as specifically set forth herein or as may be specifically agreed
to by PFPC in writing. PFPC shall be obligated to exercise care and diligence
in the performance of its duties hereunder, to act in good faith and to use its
best efforts, within reasonable limits, in performing services provided for
under this Agreement. PFPC shall be liable for any damages arising out of
PFPC's failure to perform its duties under this Agreement to the extent such
damages arise out of PFPC's willful misfeasance, bad faith, gross negligence or
reckless disregard of such duties.
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(b) Without limiting the generality of the foregoing or
of any other provision of this Agreement, (i) PFPC shall not be liable for
losses beyond its control, provided that PFPC has acted in accordance with the
standard of care set forth above; and (ii) PFPC shall not be liable for (A) the
validity or invalidity or authority or lack thereof of any Oral Instruction or
Written Instruction, notice or other instrument which conforms to the
applicable requirements of this Agreement, and which PFPC reasonably believes
to be genuine; or (B) subject to Section 10, delays or errors or loss of data
occurring by reason of circumstances beyond PFPC's control, including acts of
civil or military authority, national emergencies, labor difficulties, fire,
flood, catastrophe, acts of God, insurrection, war, riots or failure of the
mails, transportation, communication or power supply.
(c) Notwithstanding anything in this Agreement to the
contrary, neither PFPC nor its affiliates shall be liable to the Partnership
for any consequential, special or indirect losses or damages which the
Partnership or any Portfolio may incur or suffer by or as a consequence of
PFPC's or any affiliates' performance of the services provided hereunder,
whether or not the likelihood of such losses or damages was known by PFPC or
its affiliates.
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS
BASIS. PFPC will perform the following accounting services:
(i) Journalize investment, capital share and
income and expense activities;
(ii) Verify investment buy/sell trade tickets when
received from the investment adviser for a
Portfolio (the "Adviser") in accordance with
PFPC's written procedures;
(iii) Maintain individual ledgers for investment
securities;
(iv) Maintain historical tax lots for each
security;
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(v) Record and reconcile corporate action
activity and all other capital changes with
the Partnership's Adviser;
(vi) Reconcile cash and investment balances of the
Partnership with the Custodian, and provide
the Adviser and the Manager with the
beginning cash balance available for
investment purposes;
(vii) Update the cash availability throughout the
day as required by the Adviser, including
details of cash movements related to
securities and payment of Partnership
expenses;
(viii) Calculate contractual expenses (e.g.,
advisory and custody fees) in accordance with
the Partnership's Confidential Memorandum;
(ix) Prepare monthly the Statement of Assets and
Liabilities, the Statement of Operations,
Statement of Changes in Partner's Capital,
and the Statement of Changes in Net Assets,
Listing of Investment and Quarterly Reports,
if required;
(x) Maintain detailed line item expense budget
for the Partnership and notify an officer of
the Partnership of any proposed adjustments;
(xi) Control all disbursements and authorize such
disbursements from the Partnership's account
at PNC Bank, Delaware upon Written
Instructions;
(xii) Calculate capital gains and losses;
(xiii) Determine net income;
(xiv) Determine applicable foreign exchange gains
and losses on payables and receivables;
(xv) Interface with global custodian to monitor
collection of tax reclaims;
(xvi) Calculate daily asset coverage ratio;
(xvii) Obtain daily security market quotes 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
and the appreciation/depreciation on the
Partnership's Investments;
(xviii) Transmit or otherwise send mail a copy of the
daily portfolio valuation to the Adviser and
Manager;
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(xix) Compute net asset value with frequency to
conform to the terms of the Partnership;
(xx) Research and recommend portfolio accounting
tax treatment for unique security types; and
(xxi) As appropriate, compute yields, total return,
expense ratios, portfolio turnover rate, and,
if required, portfolio average
dollar-weighted maturity in accordance with
applicable regulations.
15. DESCRIPTION OF ADMINISTRATION SERVICES ON A
CONTINUOUS BASIS. PFPC will perform the following administration services:
(i) Prepare quarterly broker security
transactions summaries including principal
and agency transactions and related
commissions;
(ii) Prepare monthly security transaction
listings;
(iii) Supply various normal and customary portfolio
and Partnership statistical data as requested
on an ongoing basis;
(iv) Provide to the extent contained in accounting
records materials required for board
reporting as may be requested from time to
time;
(v) Prepare for execution and file the
Partnership's Federal Form 1065 and state tax
returns;
(vi) Prepare and file the Partnership's Annual and
Semi-Annual Reports with the SEC on Form
N-SAR via XXXXX;
(vii) Prepare and coordinate printing of and filing
with the SEC via XXXXX the Partnership's
annual, semi-annual, and quarterly
shareholder reports;
(viii) Assist in the preparation of registration
statements;
(ix) Transmit or otherwise send, to the extent
practicable and feasible, requested detailed
information related to the Limited Partners,
including admission details, income, capital
gains and losses, and performance detail;
(x) Mail Partnership offering materials to
prospective investors; and
(xi) Mail quarterly reports of the Adviser and
Semi-Annual Financial Statements to investors
as well as any other necessary
correspondence.
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16. DESCRIPTION OF INVESTOR SERVICES ON A CONTINUOUS
BASIS. PFPC will perform the following functions:
(i) Maintain the register of Limited Partners of
the Partnership 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 limited
partnership agreement and private offering
memorandum; and
(iii) Allocate income, expenses, gains and losses
to individual Limited Partners' capital
accounts in accordance with applicable tax
laws and with the private offering
memorandum,;
(iv) Calculate the Incentive Allocation in
accordance with the Confidential
Memorandum and reallocate corresponding
amounts from the applicable Limited Partners'
accounts to the General Partner's account.
(v) Mail to Partners annual Form K-1's in
accordance with applicable tax regulations;
and
(vi) Mail tender offers to Partners for purposes
of executing repurchases.
17. DURATION AND TERMINATION. This Agreement shall
continue until terminated by either party on sixty (60) days' prior written
notice to the other party.
18. NOTICES. All notices and other communications,
including Written Instructions, shall be in writing or by confirming telegram,
cable, telex or facsimile sending device. If notice is sent by confirming
telegram, cable, telex or facsimile sending device, it shall be deemed to have
been given immediately. If notice is sent by first-class mail, it shall be
deemed to have been given three 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, Xxxxxxxx 00000; Attn: Xxxx Xxxxxxx (b) if to the Partnership, at
c/o Oppenheimer & Co., Inc., One World Financial Center, 000 Xxxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000 , Attn: Xxxxx X'Xxxxx; or (c) if to neither of
the foregoing, at such other address as
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shall have been provided by like notice to the sender of any such notice or
other communication by the other party.
19. 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.
20. DELEGATION; ASSIGNMENT. This Agreement and the
rights and duties of the parties herein may not be assigned; provided, however,
that PFPC may assign its rights and delegate its duties hereunder, at no
additional cost to the Partnership, to any wholly-owned direct or indirect
subsidiary of PNC Bank, National Association or PNC Bank Corp., provided that
(i) PFPC gives the Partnership sixty (60) days' prior written notice; (ii) the
delegate (or assignee) agrees with PFPC and the Partnership to comply with all
relevant provisions of the Securities Laws; and (iii) PFPC and such delegate
(or assignee) promptly provide such information as the Partnership may request,
and respond to such questions as the Partnership may ask, relative to the
delegation (or assignment), including (without limitation) the capabilities of
the delegate (or assignee). Except as stated above, this Agreement may not be
assigned or delegated by any party without the written consent of each party.
21. 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.
22. FURTHER ACTIONS. Each party agrees to perform such
further acts and execute such further documents as are necessary to effectuate
the purposes hereof.
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23. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof, provided
that the parties may embody in one or more separate documents their agreement,
if any, with respect to delegated duties and Oral Instructions.
(b) Captions. The captions in this Agreement are
included for convenience of reference only and in no way define or delimit any
of the provisions hereof or otherwise affect their construction or effect.
(c) Governing Law. This Agreement shall be deemed to be
a contract made in Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(d) Partial Invalidity. If any provision of this
Agreement shall be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected thereby.
(e) Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(f) 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/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Vice President
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TROON PARTNERS, L.P.
BY: TROON MANAGEMENT, L.L.C.
General Partner
BY: XXXXXXXXXXX & CO., INC.
Manager
By: /s/ Xxxxx Xxxxxx X'Xxxxx
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Title: Senior Vice President
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AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
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