EXHIBIT (K)(2)
ADMINISTRATION , ACCOUNTING AND INVESTOR SERVICES AGREEMENT
THIS AGREEMENT is made as of ___________, 1999 by and between PW TECHNOLOGY
PARTNERS, L.P., a Delaware limited partnership (the "Partnership"), 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 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 person duly authorized by the
Partnership's directors to give Oral Instructions and Written
Instructions on behalf of the Partnership 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) "GENERAL PARTNERS" AND "LIMITED PARTNERS" shall have the same meanings
as set forth in the Partnership's amended and restated limited
partnership agreement (the "Limited Partnership Agreement").
(f) "MANAGER" means PW Fund Advisor, L.L.C.
(g) "MEMORANDUM" means the Partnership's confidential memorandum.
(h) "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.
(i) "SEC" means the Securities and Exchange Commission.
(j) "SECURITIES LAWS" means the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(k) "WRITTEN INSTRUCTIONS" 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 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 the Limited Partnership Agreement and Memorandum;
(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 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 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 Partnership's directors 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 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 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, 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 Partnership, 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 Partnership 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 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, 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
(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 of PFPC provided hereunder.
(c) Upon termination of this Agreement, PFPC in accordance with the
Partnership's reasonable request, shall, in accordance with Written
Instructions, deliver a copy of the books and records pertaining to
the Partnership, which are in the possession or under control of PFPC,
to the Partnership or any other person designated by the Partnership.
8. CONFIDENTIALITY. PFPC agrees to keep confidential all records of the
Partnership and information relating to the Partnership, the General
Partners and the 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.
The Partnership 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 Partnership's consent prior to
disclosing such information.
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 as the Partnership 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 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.
11. YEAR 2000 READINESS DISCLOSURE. PFPC (a) has reviewed its business and
operations as they relate to the services provided hereunder, (b) has
developed or is developing a program to remediate or replace computer
applications and systems, and (c) has developed a testing plan to test the
remediation or replacement of computer applications/systems, in each case,
to address on a timely basis the risk that certain computer
applications/systems used by PFPC may be unable to recognize and perform
properly date sensitive functions involving dates prior to, including and
after December 31, 1999, including dates such as February 29, 2000 (the
"Year 2000 Challenge"). To the best of PFPC's knowledge and belief, the
reasonably foreseeable consequences of the Year 2000 Challenge will not
adversely effect PFPC's ability to perform its duties and obligations under
this Agreement.
12. 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.
13. INDEMNIFICATION.
(a) 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 (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 Partnership 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
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 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 Partnership
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 Sections 10 and 11 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 Partnership for any
consequential, special or indirect losses or damages which the
Partnership 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) Reconcilecash and investment balances of the Partnership 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 Partnership expenses;
(viii) Calculate contractual expenses (e.g. advisory and custody fees)
in accordance with the Memorandum;
(ix) Maintain expense budget for the Partnership and notify an officer
of the Partnership of any proposed adjustments;
(x) Control all disbursements and authorize such disbursements from
the Partnership's account with 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 Partnership's investments;
(xvi) Transmit or otherwise send a copy of the daily portfolio
valuation to the Manager;
(xvii) Compute net asset values monthly;
(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
DRAFT 1/8/99 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 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 the services of the Partnership's printer
for the printing of and filing with the SEC via XXXXX the
Partnership'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 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 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 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 Limited
Partnership Agreement and the Memorandum;
(iii) Allocate income, expenses, gains and losses to individual
Limited Partners= capital accounts in accordance with applicable
tax laws and with the Memorandum;
(iv) Calculate the Incentive Allocation in accordance with the
Memorandum and reallocate corresponding amounts from the
applicable Limited Partners' accounts to the Manager's account;
(v) Prepare and mail annually to each Partner a Form K-1 in
accordance with applicable tax regulations; and
(vi) Mail tender offers to Partners 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 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attn: Xxxx X. Xxxxxxx; (b) if to the
Partnership, at c/o PaineWebber Incorporated, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn:____________; 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 0000 Xxx) of or any
majority-owned direct or indirect subsidiary of PFPC or PNC Bank Corp.,
provided that (i) PFPC gives the Partnership (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 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 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).
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: ______________________
Title:____________________
PW TECHNOLOGY PARTNERS, L.P.
By:______________________
Title: ______________________
AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
