EXHIBIT k(2)
ADMINISTRATION, ACCOUNTING AND INVESTOR SERVICES AGREEMENT
THIS AGREEMENT is made as of October 11, 2000 by and between PW
JUNIPER CROSSOVER FUND, L.L.C., a Delaware limited liability company (the
"Fund"), and PFPC INC., a Delaware corporation ("PFPC"), which is an indirect
subsidiary of PNC Bank Corp.
W I T N E S S E T H :
WHEREAS, the Fund is registered as a closed-end, 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 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 person duly authorized by the
Fund's Board to give Oral Instructions and Written Instructions
on behalf of the Fund and listed on the Authorized Persons
Appendix attached hereto or any amendment thereto as may be
received by PFPC from time to time. An Authorized Person's scope
of authority may be limited to the extent set forth in the
Authorized Persons Appendix.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "BOARD" and "MEMBERS" shall have the same meanings as set forth
in the Fund's limited liability company agreement (the "Limited
Liability Company Agreement").
(f) "MANAGER" means PW Juniper Management, L.L.C.
(g) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC from
an Authorized Person or from a person reasonably believed by PFPC
to be an Authorized Person.
(h) "SEC" means the Securities and Exchange Commission.
(i) "SECURITIES LAWS" means the 1933 Act, the 1934 Act, the 1940 Act
and the CEA.
(j) "WRITTEN INSTRUCTIONS" mean written instructions signed by an
Authorized Person or a person reasonably believed by PFPC to be
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 Fund hereby appoints PFPC to provide administration,
accounting 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. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable,
will provide PFPC with the following:
(a) certified or authenticated copies of the resolutions of the
Board, approving the appointment of PFPC or its affiliates to
provide services and approving this Agreement;
(b) a copy of the Fund's most recent effective registration statement
on Form N-2 under the 1940 Act, as filed with the SEC;
(c) a copy of the Limited Liability Company Agreement;
(d) a copy of any distribution agreement with respect to the Fund;
(e) a copy of any additional administration agreement with respect to
the Fund;
(f) a copy of any investor servicing agreement made with respect to
the Fund; and
(g) copies (certified or authenticated, where applicable) of any and
all amendments or supplements to the foregoing.
4. COMPLIANCE WITH RULES AND REGULATIONS.
PFPC 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 Fund or any
other party.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only
upon Oral Instructions and 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 organizational
documents or this Agreement or of any vote, resolution or
proceeding of the Board or the Members, unless and until PFPC
receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions
confirming Oral Instructions and shall endeavor to ensure that
PFPC receives the Written Instructions by the close of business
on the same day that such Oral Instructions are received. The
fact that such confirming Written Instructions are not received
by PFPC shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral
Instructions. Where Oral Instructions or Written Instructions
reasonably appear to have been received from an Authorized
Person, PFPC shall incur no liability to the Fund in acting upon
such Oral Instructions or Written Instructions provided that
PFPC's actions comply with the other provisions of this
Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If PFPC is in doubt as to any action it
should or should not take, PFPC may request directions or advice,
including Oral Instructions or Written Instructions, from the
Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any question
of law pertaining to any action it should or should not take,
PFPC may request advice at its own cost from such counsel of its
own choosing (who may, without limitation, be counsel for the
Fund, or PFPC, at the option of PFPC), provided that 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 Fund, and the advice PFPC receives from
counsel selected with reasonable care, PFPC may rely upon and
follow the advice of such counsel. PFPC shall promptly inform the
Fund of such conflict. If PFPC relies on the advice of counsel,
PFPC will remain liable for any action or omission on the part of
PFPC which constitutes willful misfeasance, bad faith, gross
negligence or reckless disregard by PFPC of any duties,
obligations or responsibilities set forth in this Agreement.
(d) Protection of PFPC. PFPC shall be protected in any action it
takes or does not take in reliance upon directions, advice or
Oral Instructions or Written Instructions it receives from the
Fund or 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, 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 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.
(b) PFPC shall keep the following records:
(i) all books and records with respect to the Fund's books of
account;
(ii) records of the Fund's securities transactions; and
(iii) all other books and records as the Fund is required to
maintain pursuant to Rule 31a-1 of the 1940 Act in
connection with the services of PFPC provided hereunder.
(c) Upon termination of this Agreement, PFPC in accordance with the
Fund's reasonable request, shall, in accordance with Written
Instructions, deliver a copy of the books and records pertaining
to the Fund, which are in the possession or under control of
PFPC, to the Fund or any other person designated by the Fund.
8. CONFIDENTIALITY. PFPC agrees to keep confidential all records of the
Fund and information relating to the Fund and its Members, unless the
release of such records or information is otherwise consented to, in
writing, by the Fund. The Fund agrees that such consent shall not be
unreasonably withheld. The Fund further agrees that, should PFPC be
required to provide such information or records to duly constituted
authorities (who may institute civil or criminal contempt proceedings
for failure to comply), PFPC shall not be required to seek the Fund's
consent prior to disclosing such information.
9. 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 as the Fund
or such accountants may reasonably request. PFPC shall take all
reasonable action in the performance of its duties under this
Agreement to ensure that the necessary information is made available
to such accountants for the expression of their opinion, as required
by 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.
11. RESERVED.
12. COMPENSATION. As compensation for services rendered by PFPC during the
term of this Agreement, the Fund will pay to PFPC a fee or fees as may
be agreed to in writing by the Fund and PFPC.
13. INDEMNIFICATION.
(a) The Fund 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 (collectively, "Losses") arising directly
or indirectly from any action which PFPC takes or does not take
(i) at the request or on the direction of or in reliance on the
advice of the Fund or (ii) upon Oral Instructions or Written
Instructions. 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.
(b) Notwithstanding anything in this Agreement to the contrary, the
Fund 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 Fund.
14. 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 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 agrees to indemnify and
hold harmless the Fund from Losses arising out of PFPC's failure
to perform its duties under this Agreement to the extent such
damages arise out of PFPC's willful misfeasance, bad faith, gross
negligence or reckless disregard of such duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC shall not be liable for
losses beyond its control, provided that PFPC has acted in
accordance with the standard of care set forth above; and (ii)
PFPC shall not be liable for (A) the validity or invalidity or
authority or lack thereof of any Oral Instruction or Written
Instruction, notice or other instrument which conforms to the
applicable requirements of this Agreement, and which PFPC
reasonably believes to be genuine; or (B) subject to Section 10
of this Agreement, delays or errors or loss of data occurring by
reason of circumstances beyond PFPC's control, including acts of
civil or military authority, national emergencies, labor
difficulties, fire, flood, catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation,
communication or power supply.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC nor its affiliates shall be liable to the Fund for
any consequential, special or indirect losses or damages which
the Fund may incur or suffer by or as a consequence of PFPC's or
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.
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 Manager in accordance with PFPC's written procedures;
(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 with the Manager;
(vi) Reconcile cash and investment balances of the Fund with the
custodian, and provide the Manager with the beginning cash
balance available for investment purposes.
(vii) Update the cash availability throughout the day as required
by the Manager, including details of cash movements related
to securities and payment of Fund expenses;
(viii) Calculate contractual expenses (e.g. advisory and custody
fees) in accordance with the Fund's then current prospectus
and statement of additional information;
(ix) Maintain expense budget for the Fund and notify an officer
of the Fund of any proposed adjustments;
(x) Control all disbursements and authorize such disbursements
from the Fund's account at the custodian 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) Interface with global custodian to monitor collection of tax
reclaims;
(xv) Obtain daily security market quotes from independent pricing
services approved by the Manager, or if such quotes are
unavailable, then obtain such prices from the Manager, and
in either case calculate the market value and the
appreciation/depreciation on the Fund's investments;
(xvi) Transmit or otherwise send a copy of the daily portfolio
valuation to the Manager;
(xvii) Compute net asset values at such times as are set forth in
the Fund's then current prospectus and statement of
additional information;
(xviii) Research and recommend portfolio accounting tax treatment
for unique security types; and
(xix) As appropriate, compute yields, total return, expense
ratios, portfolio turnover rate, and, if required, portfolio
average dollar-weighted maturity in accordance with
applicable regulations.
16. 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 Fund 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 Fund's Federal Form 1065
and state tax returns;
(vi) Prepare and file the Fund's Annual and Semi-Annual Reports
with the SEC on Form N-SAR via ▇▇▇▇▇;
(vii) Prepare and coordinate the services of the Fund's printer
for the printing of and filing with the SEC via ▇▇▇▇▇ the
Fund's annual and semi-annual 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
Members, including admission details, income, capital gains
and losses, and performance detail;
(x) Mail Fund offering materials to prospective investors; and
(xi) Mail quarterly reports of the Manager and Semi-Annual
Financial Statements to investors as well as any other
necessary correspondence.
17. 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
Limited Liability Company Agreement and the Fund's then
current prospectus and statement of additional information;
(iii) Allocate income, expenses, gains and losses to individual
Members' capital accounts in accordance with applicable tax
laws and with the Fund's then current prospectus and
statement of additional information;
(iv) Calculate the Incentive Allocation in accordance with the
Fund's then current prospectus and statement of additional
information and reallocate corresponding amounts from the
applicable Members' accounts to the Manager's account;
(v) Prepare and mail annually to Members a Form K-1 in
accordance with applicable tax regulations; and
(vi) Mail tender offers to Members for purposes of executing
repurchases.
18. DURATION AND TERMINATION. This Agreement shall be effective on the
date first above written and shall continue in effect for an initial
period of two years. Thereafter, this Agreement, unless terminated,
shall continue automatically for successive terms of one (1) year.
This Agreement may be terminated by either party upon 60 days' prior
written notice to the other party.
19. 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 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇; (b) if to the Fund, at c/o PaineWebber Incorporated,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Esq.; 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 affiliate (as defined in the ▇▇▇▇ ▇▇▇) of or
any majority-owned direct or indirect subsidiary of PFPC Inc., or PNC
Bank Corp., provided that (i) PFPC gives the Fund (60) days' prior
written notice; (ii) the delegate (or assignee) agrees with PFPC and
the Fund to comply with all relevant provisions of the Securities
Laws, and any laws, rules and regulations of governmental authorities
having jurisdiction with respect to the duties to be performed by the
delegate (or assignee) hereunder; and (iii) PFPC and such delegate (or
assignee) promptly provide such information as the Fund may request,
and respond to such questions as the Fund may ask, relative to the
delegation (or assignment), including, without limitation, the
capabilities of the delegate (or assignee).
22. COUNTERPARTS. This Agreement may be executed in 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 with respect to the subject
matter hereof and supersedes all prior agreements and
understandings relating to the subject matter hereof.
(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:
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Title:
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PW JUNIPER CROSSOVER FUND, L.L.C.
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Authorized Person
AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /S/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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