Exhibit 99.2k(i)
ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of December [__] 2003 by and between THE TOPIARY
BENEFIT PLAN INVESTOR FUND 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:
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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 sub-administration
and accounting 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 Administrator or the
Fund and any other person duly authorized by the Fund's directors to give Oral
Instructions and Written Instructions on behalf of the Fund or any person
reasonably believed by PFPC to be so authorized. 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) "Member" shall have the same meaning given such term in the Operating
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. 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.
(g) "Organizational Documents" means the Fund's charter or articles of
incorporation, limited liability company operating agreement ("Operating
Agreement"), bylaws, prospectus, and other documents constituting the Fund,
each as may be amended.
(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 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 Fund hereby appoints PFPC to provide administration and
accounting services to the Fund, in accordance with the terms set forth in
this Agreement. PFPC accepts such appointment and agrees to furnish such
services to the Fund in accordance with the terms set forth in this Agreement.
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 Fund's
directors, 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 all of the Fund's Organizational Documents;
(d) a copy of any investment management agreement with respect to the
Fund;
(e) a copy of any distribution 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 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 Fund to PFPC and agreed in writing by PFPC. Except as specifically set
forth herein, PFPC assumes no responsibility for such compliance by the Fund.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Oral Instructions or Written Instructions.
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(b) PFPC shall be entitled to rely upon any Oral Instructions or Written
Instructions it receives from 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 directors 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. 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 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) provided, however,
that the Fund will be responsible only for reasonable legal expenses incurred
in connection therewith.
(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. PFPC shall promptly inform the Fund of such conflict,
and PFPC shall refrain from acting in the event of a conflict, unless counsel
advises PFPC that 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
that 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 and indemnified by the
Fund in any action PFPC takes or does not take in reliance upon directions,
advice, or Oral Instructions or Written Instructions PFPC receives from or on
behalf of the Fund or from counsel and that 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:
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(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, Authorized Persons, and the staff of the SEC 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. No records will be destroyed without the Fund's written consent.
(b) PFPC shall keep the following records:
(i) all books and records with respect to the Fund's books of
account; and
(ii) records of the Fund's securities transactions.
(c) To the extent required by, and in the manner prescribed by and in
accordance with, the 1940 Act, the books and records of PFPC pertaining to its
actions under this Agreement and reports by PFPC or its independent
accountants concerning its accounting system, procedures for safeguarding
securities, and internal accounting controls will be open to inspection and
audit at reasonable times by officers, employees, or agents of the Fund or
auditors employed by the Fund and will be preserved by PFPC.
8. Confidentiality. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
(a) Confidential Information shall include:
(i) any data or information that is competitively sensitive
material, and not publicly available, 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, the Fund's investment adviser, or PFPC, their
respective subsidiaries, and affiliated companies and the customers,
clients, and suppliers of any of them;
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(ii) 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, the
Fund's investment adviser or PFPC a competitive advantage over its
competitors;
(iii) 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
(iv) anything designated as confidential.
(b) Notwithstanding the foregoing, information shall not be subject to
such confidentiality obligations if it:
(i) is already known to the receiving party at the time it is
obtained other than as a result of disclosure by the other party;
(ii) is or becomes publicly known or available through no wrongful
act of the receiving party;
(iii) is rightfully received from a third party who, to the best of
the receiving party's knowledge, is not under a duty of
confidentiality;
(iv) is released by the protected party to a third party without
restriction;
(v) 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);
(vi) is relevant to the defense of any claim or cause of action
asserted against the receiving party; or
(vii) has been or is independently developed or obtained by the
receiving party.
(c) If any party to this agreement or any of such party's affiliates or
their respective employees, officers, agents, or representatives (hereinafter,
"Qualified Persons") is requested or required (by oral question,
interrogatories, requests for information or documents, subpoena, civil
investigative demand, or similar process) to disclose any Confidential
Information, such party, on its own behalf or on behalf of such party's
Qualified Person, will promptly notify such other party of such request or
requirement so that such other party may seek an appropriate protective order
or waive compliance with provisions of this Agreement. If, in the absence of a
protective order or the receipt of a waiver hereunder, such party or such
party's Qualified Person subject to the disclosure request or requirement is,
in the written opinion of such party's counsel addressed to such other party
(the reasonable fees for which shall be paid by such other party), compelled
to disclose the Confidential Information or else stand liable for contempt or
suffer other censure or significant penalty, such party or such party's
Qualified Person subject to the
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disclosure request or requirement may disclose only such of the Confidential
Information to the party compelling disclosure as is required by law. Any
party that discloses Confidential Information pursuant to the foregoing
sentence shall not be liable for the disclosure of such Confidential
Information to the other party unless such disclosure was caused by such
party's or such party's Qualified Person's action or inaction that (i)
constitutes willful misfeasance, bad faith, gross negligence, or reckless
disregard of their duties hereunder or (ii) is not otherwise permitted by this
Agreement.
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 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 in a timely manner for the expression of their opinion as to the
financial statements of the Fund or as may otherwise be required by the
Securities Laws or the Fund.
10. PFPC System. PFPC shall retain title to and ownership of any and all
database technology, 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.
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, including the
maintenance of an offsite disaster recovery site from which PFPC can meet its
obligations hereunder in the event that its primary facility is unavailable.
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.
12. Compensation. 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.
13. Indemnification. Each party agrees to indemnify and hold harmless the
other party and its affiliates, including their respective officers,
directors, agents, and employees, from all taxes, charges, expenses,
assessments, claims, and liabilities (including, without limitation,
reasonable attorneys fees and disbursements and liabilities arising under the
Securities Laws and any state and foreign securities and blue sky laws)
arising directly or indirectly from any action or omission to act by that
party in connection with this Agreement. Neither party, nor any of its
affiliates, shall be indemnified against any liability (or any expenses
incident to such liability) caused by such party's or its affiliates' own
willful misfeasance, bad faith, gross negligence, or reckless disregard in the
performance of its duties under this Agreement. The provisions of this Section
13 shall survive termination of this Agreement.
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14. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action on behalf of the Fund
except as reasonably necessary to fulfill its duties 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
that conforms to the applicable requirements of this Agreement and
that PFPC reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement (whether contained
anywhere in Sections 15-17 hereof or otherwise) to the contrary, the Fund
hereby acknowledges and agrees that
(i) PFPC, in the course of providing tax-related services or calculating
and reporting portfolio performance hereunder, may rely upon PFPC's
interpretation of tax positions or its interpretation of relevant
circumstances (as determined by PFPC) in providing such tax services
and in determining methods of calculating portfolio performance to
be used, provided that such interpretations and determinations are
made in good faith and subject to review by the Fund's tax adviser,
and
(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 bad faith, gross negligence,
willful misfeasance, or reckless disregard of its duties.
(d) Notwithstanding anything in this Agreement to the contrary, without
limiting anything in the immediately preceding sentence, the Fund hereby
acknowledges and agrees that PFPC shall not be liable for any losses or
damages of any kind associated with any tax filings with which PFPC has
assisted in any way except to the extent such loss or damage is
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substantially due to PFPC's bad faith, gross negligence, willful misfeasance
or reckless disregard of its duties, at the time of such assistance;
(e) 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. PFPC's cumulative liability to
the Fund for all losses, claims, suits, controversies, breaches, or damages
for any cause whatsoever (including but not limited to those arising out of or
related to this Agreement) and regardless of the form of action or legal
theory shall not exceed the lesser of $200,000 or the fees received by PFPC
for services provided hereunder during the 24 months immediately prior to the
date of such loss or damage.
(f) Any cause of action asserted by the Fund against PFPC or any of its
affiliates must be asserted within the 12 month period after the Fund has
actual knowledge of such cause of action.
(g) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(h) The provisions of this Section 14 shall survive termination of this
Agreement.
15. Description of Accounting Services on a Continuous Basis. PFPC will
perform the following accounting services with respect to each portfolio:
(a) Journalize investment, capital, and income and expense activities;
(b) Verify investment instructions are properly authorized before
directing cash flows, and confirm receipt of money at investment funds in
accordance with PFPC's written procedures;
(c) Maintain individual ledgers for investment securities;
(d) Maintain historical tax lots for each security;
(e) Record and reconcile corporate action activity and all other capital
changes;
(f) Reconcile cash and investment balances of the Fund with the Fund's
custodian(s), and provide the Administrator with the beginning cash balance
available for investment purposes and with online access to cash account of
the Fund and regular updates on the escrow account;
(g) Calculate contractual expenses, including management fees and
incentive allocation, as applicable, in accordance with the Fund's
confidential memorandum;
(h) Post to and prepare the Statement of Assets and Liabilities and the
Statement of Operations in U.S. dollar terms;
(i) Monitor expense accruals and notify an officer of the Fund or an
Authorized Person of any proposed adjustments;
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(j) Control all disbursements and authorize such disbursements from the
Fund's account with the custodian(s) upon Written Instructions;
(k) Calculate capital gains and losses;
(l) Determine net investment income;
(m) Obtain security market quotes and currency exchange rates from
independent pricing services approved by the Fund or the Fund's investment
adviser, or if such quotes are unavailable, then obtain the net asset values,
or if the net asset value is not available then the net rate of return,
directly from the underlying fund's adviser or general partner, or its
delegee, and in either case calculate the market value of the Fund's
investments in accordance with the applicable valuation policies or guidelines
provided by the Fund to PFPC;
(n) Obtain the weekly estimated net asset values, or if the estimated net
asset value is not available then the net rate of return, directly from the
underlying fund's adviser or general partner, or its delegee, and in either
case calculate the estimated market value of the Fund's investments in
accordance with the applicable valuation policies or guidelines provided by
the Administrator or the Fund to PFPC;
(o) Transmit or mail a copy of the monthly portfolio valuation to the
Fund or the Fund's investment adviser;
(p) Transmit or mail a copy of the monthly various portfolio management
reports, including:
(i) Estimated/final valuation variance analysis;
(ii) Style drift analysis; and
(iii) Any other such portfolio management report as may be
reasonably requested by the Fund and agreed to by PFPC.
(q) Compute by the 9th business day of each month the net asset value in
accordance with GAAP and the provisions of the Fund's Operating Agreement and
Prospectus;
(r) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average dollar-weighted
maturity;
(s) Prepares annual reports and send to Fund's auditor;
(t) Interact with custodian;
(u) Maintain annual expense budget for the Fund;
(v) Interact with custodian/prime broker to ensure timely collection of
tax reclaim; and
(w) Prepare monthly financial statements, which will include the
following items:
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Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
16. Description of Administration Services on a Continuous Basis. PFPC will
perform the following administration services:
(a) Prepare monthly security transaction listings;
(b) Supply various normal and customary Fund statistical data as
requested on an ongoing basis;
(c) Prepare for execution and file the Fund's Federal Form 1065 and state
tax returns;
(d) Coordinate contractual relationships and communications between the
Fund and its contractual service providers including custodians;
(e) Prepare and file the Fund's Annual and Semi-Annual Reports to Members
with the SEC on Form N-30D via XXXXX and coordinate printing of such reports;
(f) Prepare and file the Fund's Annual and Semi-Annual Reports with the
SEC on Form N-SAR via XXXXX;
(g) 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;
(h) Report monthly NAV and weekly estimates;
(i) Support web reporting and fulfillment as mutually agreed upon in
writing by the parties;
(j) File state "blue sky" filings;
(k) Provide electronically information necessary for Fund to prepare
investor level reporting, as mutually agreed upon in writing by the parties;
and
(l) Timely notification of Fund's subscription and redemption,
investment, and cash disbursement activity to the Fund.
17. Description of Regulatory and Administrative Services on a Continuous
Basis. PFPC will perform the following regulatory and administrative services
with respect to each portfolio:
(a) Prepare, coordinate with the Fund's counsel, and file with the SEC
Post-Effective Amendments to the Fund's Registration Statement, prepare
reports to the SEC including, the preparation and filing of Notices pursuant
to Rule 24f-2;
(b) Prepare notices of Annual or Special Meetings of Members and Proxy
materials relating to such meetings, subject to Fund counsel approval;
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(c) Assist 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 governing board;
(d) Monitor the Fund's assets to assure adequate fidelity bond coverage
is maintained;
(e) Maintain the Fund's corporate calendar to assure compliance with
various filing and board approval deadlines;
(f) Mailing and collecting responses to periodic tender offers;
(g) Mailing of Fund's code of ethics to Fund Access Persons (as defined
in the 0000 Xxx) as identified by the Fund; and
(h) Maintain Fund files.
18. Duration and Termination. This Agreement shall continue until terminated
by the Administrator or by PFPC on sixty (60) days' prior written notice to
the other party. In the event the Fund gives notice of termination, all
reasonable 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 Fund.
19. Notices. Notices shall be addressed
(a) if to PFPC, at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: President;
(b) if to the Fund, at c/o DB Absolute Return Strategies, 00 XxXxxxxx
Xxxxxx, Xxxxxx XX 00000, Attention: [Xxxx Xxxxxxxx]; 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.
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 (i) PFPC gives the Fund 60 days' prior written notice of
such assignment; (ii) the assignee or
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delegate agrees to comply with the relevant provisions of the Securities Laws;
and (iii) PFPC and such assignee or delegate promptly provide such information
as the Fund may request, and respond to such questions as the Fund may ask,
relative to the assignment or delegation, including, without limitation, the
capabilities of the assignee or delegatee. Except as stated above, this
Agreement may not be assigned or delegated by any party without the written
consent of each party.
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 Fund agrees to provide PFPC
with prior notice sufficient for PFPC to evaluate the impact of any
modifications to its registration statement or the adoption of any policies
that would affect materially the obligations or responsibilities of PFPC
hereunder.
(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 Administrator 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.
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(h) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by such
party.
(i) No Third Party Beneficiaries. Except as expressly set forth herein,
no provision hereof is intended to benefit the Fund or any other third 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.
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Name:
Title:
The Topiary Benefit Plan Investor Fund LLC
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Name:
Title:
