Exhibit 99.2(k)(ii)
SUB-ADMINISTRATION, ACCOUNTING AND INVESTOR SERVICES AGREEMENT
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THIS AGREEMENT is made as of December 1, 2003 by and between ASPEN
STRATEGIC ALLIANCE LLC, an Illinois limited liability company (the
"Administrator"), each of the funds listed on Schedule A (each such fund
referred to herein as the "Fund"), and PFPC INC., a Massachusetts corporation
("PFPC").
W I T N E S S E T H :
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 the Securities Act of 1933 (the "1933 Act");
WHEREAS, the Fund has entered into an agreement with the Administrator
where the Administrator provides certain administrive services to the Fund in
the manner and on the terms set forth therein; and
WHEREAS, the Administrator wishes to retain PFPC to assist it in
providing 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) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(b) "Authorized Person" means any officer of 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. An
Authorized Person's scope of authority may be limited by setting
forth such limitation in a written document signed by both parties
hereto.
(c) "CEA" means the Commodities Exchange Act, as amended.
(d) "Member" shall have the same meaning given such term in the LLC
Agreement (as hereinafter defined).
(e) "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.
(f) "Organizational Documents" means the Fund's charter or articles of
incorporation, Limited Liability Company Agreement ("LLC
Agreement"), bylaws, confidential memorandum and other documents
constituting the Fund.
(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" 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 Administrator hereby appoints PFPC to assist it in
providing 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 Administrator 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 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
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(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 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.
(b) PFPC shall be entitled to rely upon any Oral Instructions or Written
Instructions it receives from an Authorized Person (or from a person
reasonably believed by PFPC to be an Authorized Person) pursuant to
this Agreement. PFPC may assume that any Oral Instruction or Written
Instruction received hereunder is not in any way inconsistent with
the provisions of the Organizational Documents or this Agreement or
of any vote, resolution or proceeding of the 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.
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6. Right to Receive Advice.
(a) Advice of the Administrator or 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 Administrator or 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).
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC receives
from the Administrator or the Fund, and the advice PFPC receives
from counsel, PFPC may rely upon and follow the advice of counsel.
(d) Protection of PFPC. PFPC shall be indemnified by the Administrator
and without liability for any action PFPC takes or does not take in
reliance upon directions or advice or Oral Instructions or Written
Instructions PFPC receives from or on behalf of the Fund or from
counsel and which PFPC believes, in good faith, to be consistent
with those directions or advice or Oral Instructions or Written
Instructions. Nothing in this section shall be construed so as to
impose an obligation upon PFPC (i) to seek such directions or advice
or Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions or
Written Instructions.
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 Administrator or the Fund,
copies of any such books and records shall be provided by PFPC to
the Administrator, the Fund or to an Authorized
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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.
(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.
8. Confidentiality.
Each party shall keep confidential any information relating to the other
party's business ("Confidential Information"). Confidential Information
shall include (a) any data or information that is competitively sensitive
material, and not generally known to the public, including, but not
limited to, information about product plans, marketing strategies,
finances, operations, customer relationships, customer profiles, customer
lists, sales estimates, business plans, and internal performance results
relating to the past, present or future business activities of the
Administrator, the Fund or PFPC and their respective subsidiaries and
affiliated companies; (b) any scientific or technical information,
design, process, procedure, formula, or improvement that is commercially
valuable and secret in the sense that its confidentiality affords the
Administrator, the Fund or PFPC a competitive advantage over its
competitors; (c) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code, object
code, flow charts, databases, inventions, know-how, and trade secrets,
whether or not patentable or copyrightable; and (d) anything designated
as confidential. Notwithstanding the foregoing, information shall not be
subject to such confidentiality obligations if: (a) it is already known
to the receiving party at the time it is obtained; (b) it is or becomes
publicly known or available through no wrongful act of the receiving
party; (c) it is rightfully received from a third party who, to the best
of
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the receiving party's knowledge, is not under a duty of confidentiality;
(d) it is released by the protected party to a third party without
restriction; (e) it 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); (f) it is relevant to the defense of any claim or cause of
action asserted against the receiving party; (g) release of such
information is necessary or desirable in connection with PFPC's provision
of services under this Agreement; or (h) it has been or is independently
developed or obtained by the receiving party.
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 for the expression of their opinion,
as required by the Fund.
10. PFPC System. PFPC shall retain title to and ownership of any and all data
bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable
or copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by PFPC in connection
with the services provided by PFPC to the Administrator and 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 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
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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 Administrator
will pay to PFPC a fee or fees for services other than regulatory
administration, and the Fund will pay PFPC a fee or fees for regulatory
administration services, as may be agreed to in writing by the
Administrator, PFPC and the Fund.
13. Indemnification. The Administrator agrees to indemnify, defend and hold
harmless PFPC and its affiliates, including their respective officers,
directors, agents and employees, from all taxes, charges, expenses,
assessments, claims and liabilities (including, without limitation,
attorneys fees and disbursements and liabilities arising under the
Securities Laws and any state and foreign securities and blue sky laws)
arising directly or indirectly from any action or omission to act which
PFPC takes in connection with the provision of services to the Fund.
Neither PFPC, nor any of its affiliates, shall be indemnified against any
liability (or any expenses incident to such liability) caused by PFPC's
or its affiliates' own willful misfeasance, bad faith, gross negligence
or reckless disregard in the performance of PFPC's activities under this
Agreement. The provisions of this Section 13 shall survive termination of
this Agreement.
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 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
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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 which PFPC
reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, (i)
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 and (ii) 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 $100,000 or the fees
received by PFPC for services provided hereunder during the 12
months immediately prior to the date of such loss or damage.
(d) No party may assert a cause of action against PFPC or any of its
affiliates that
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allegedly occurred more than 12 months immediately prior to the
filing of the suit (or, if applicable, commencement of arbitration
proceedings) alleging such cause of action.
(e) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(f) The provisions of this Section 14 shall survive termination of this
Agreement.
(g) Notwithstanding anything in this Agreement to the contrary, PFPC
shall have no liability either for any error or omission of any of
its predecessors as servicer on behalf of the Fund or for any
failure to discover any such error or omission.
15. Description of Accounting Services on a Continuous Basis.
PFPC will assist the Administrator by performing the following accounting
services with respect to the Fund:
(i) Journalize investment, capital and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from
the investment adviser for the Fund 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 Fund's investment adviser;
(vi) Reconcile cash and investment balances of the Fund with the
Fund's custodian(s), and provide the Adviser with the
beginning cash balance available for investment purposes.
(vii) Update the cash availability throughout the month as required
by the Adviser;
(viii) Calculate contractual expenses, including management fees, as
applicable, in accordance with the Fund's confidential
memorandum;
(ix) Post to and prepare the Statement of Assets and Liabilities
and the Statement
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of Operations in U.S. dollar terms;
(x) Maintain expense budgets for the Fund and notify and officer
of the Fund of any proposed adjustments;
(xi) Control all disbursements and authorize such disbursements
from the Fund's account with the custodian(s) 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) Obtain monthly security market quotes and currency exchange
rates from independent pricing services approved by the
Adviser, or if such quotes are unavailable, then obtain such
prices from the Adviser, and in either case calculate the
market value of the Fund's investments in accordance with
the applicable valuation policies or guidelines provided by
the Fund to PFPC and acceptable to PFPC;
(xvi) Transmit or mail a copy of the monthly portfolio valuation
to the Adviser;
(xvii) Arrange for the monthly computation of the net asset value
in accordance with the provisions of the Fund's LLC
Agreement and confidential memorandum; and
(xviii) As appropriate, compute yields, total return, expense
ratios, portfolio turnover rate, and, if required, portfolio
average dollar-weighted maturity.
16. Description of Sub-Administration Services on a Continuous Basis.
PFPC will assist the Administrator in performing the following
sub-administration services with respect to the Fund:
(i) Prepare monthly security transaction listings;
(ii) Supply various normal and customary Fund statistical data as
requested on an ongoing basis;
(iii) Prepare the Fund's annual and semi-annual shareholder reports (not
including Form N-CSR);
(iv) Prepare and coordinate with the Fund's counsel Post-Effective
Amendments to the Fund's Registration Statement and coordinate
with the Fund's financial printer to file
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such Amendments with the SEC;
(v) Assist in the preparation for and coordination of notices of
Annual or Special Meetings of Members (other than drafting proxy
statements);
(vi) 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 Board of Directors;
(vii) Monitor the Fund's assets to assure adequate fidelity bond
coverage is maintained;
(viii) Draft agendas and resolutions for quarterly and special Board
meetings and draft written consents of the Board;
(ix) Coordinate the preparation, assembly and mailing of materials for
Board meetings;
(x) Attend Board meetings and draft minutes thereof;
(xi) Maintain the Fund's corporate calendar to assure compliance with
various SEC filing and Board approval deadlines;
(xii) Monitor the Fund's compliance with the amounts and conditions of
each state qualification;
(xiii) Assist the Fund in the handling of SEC examinations and responses
thereto;
(xiv) Maintain the Fund's files;
(xv) Provide periodic updates on recent significant regulatory events
relating to the 1940 Act;
(xvi) Mail to appropriate parties the personal securities transaction
quarterly reporting forms under the Fund's Code of Ethics pursuant
to Rule 17j-1 under the 1940 Act; and
(xvii) Prepare and file semi-annual reports on Form N-SAR.
17. Description of Investor Services on a Continuous Basis. PFPC will assist
the Administrator in performing 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 Fund's
LLC Agreement;
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(iii) Allocate income, expenses, gains and losses to individual
Members' capital accounts in accordance with the Fund's LLC
Agreement;
(iv) Mail Fund offering materials to prospective investors in
accordance with instructions from an Authorized Person.
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 Administrator gives notice of
termination, all expenses associated with movement (or duplication) of
records and materials and conversion thereof to a successor service
provider (or each successive service provider, if there are more than
one), and all trailing expenses incurred by PFPC, will be borne by the
Administrator.
19. Notices. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx Xxxxxxx; (b) if to
the Administrator, at Aspen Strategic Alliance LLC, The Biltmore, 000
Xxxx Xxxxxxxxx Xx., Xxxxx 000, Xxxxxxx, XX 00000, Attention: Xxxxxx
Xxxxxxxx or (c) if to the Fund, at the address of the Fund (d) if none 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
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subsidiary of PFPC or of The PNC Financial Services Group, Inc., provided
that PFPC gives the Fund 30 days prior written notice of such assignment.
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.
Notwithstanding any provision hereof, the services of PFPC do not
constitute, nor shall they be construed as constituting, legal
advice or the provision of legal services for or on behalf of the
Administrator, the Fund or any other person.
(b) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Administrator agrees
not to make any modifications to its registration statement or adopt
any policies which would affect materially the obligations or
responsibilities of PFPC hereunder without the prior written
approval of PFPC, which approval shall not be unreasonably withheld
or delayed.
(c) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or
effect.
(d) Governing Law. This Agreement shall be deemed to be a contract made
in Delaware
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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 Fund or any other
person, including, without limitation, any warranties regarding
quality, suitability, merchantability, fitness for a particular
purpose or otherwise (irrespective of any course of dealing, custom
or usage of trade), of any services or any goods provided incidental
to services provided under this Agreement. PFPC disclaims any
warranty of title or non-infringement except as otherwise set forth
in this Agreement.
(h) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(i) Customer Identification Program Notice. To help the U.S. government
fight the funding of terrorism and money laundering activities, U.S.
Federal law requires each financial institution to obtain, verify,
and record certain information that identifies each person who
initially opens an account with that financial institution on or
after October 1, 2003. Certain of PFPC's affiliates are financial
institutions, and PFPC may, as a matter of policy, request (or may
have already requested) the Fund's name, address and taxpayer
identification number or other government-issued identification
number, and, if such party is a natural person, that party's date of
birth. PFPC may
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also ask (and may have already asked) for additional identifying
information, and PFPC may take steps (and may have already taken
steps) to verify the authenticity and accuracy of these data
elements.
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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ASPEN STRATEGIC ALLIANCE LLC
By:
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Title:
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ASA DEBT ARBITRAGE FUND LLC
By:
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Title:
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ASA HEDGED EQUITY FUND LLC
By:
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Title:
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ASA MANAGED FUTURES LLC
By:
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Title:
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ASA MARKET NEUTRAL EQUITY FUND LLC
By:
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Title:
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SCHEDULE A
Dated December 1, 2003
to Sub-Administration, Accounting and Investor Services Agreement
dated December 1, 2003
FUNDS
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ASA Debt Arbitrage Fund LLC
ASA Hedged Equity Fund LLC
ASA Managed Futures LLC
ASA Market Neutral Equity Fund LLC
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