EXHIBIT 10.01(g)
ADMINISTRATION, ACCOUNTING AND INVESTOR SERVICES AGREEMENT
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THIS AGREEMENT is made as of January 12, 2005 by and between QUADRIGA
SUPERFUND L.P., a Delaware limited partnership (the "Partnership"), and PFPC
INC., a Massachusetts corporation ("PFPC").
W I T N E S S E T H:
WHEREAS, the Partnership wishes to retain PFPC to provide
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) "Authorized Person" means any officer of the Partnership and any
other person duly authorized by the Partnership's General Partner
to give Oral Instructions and Written Instructions on behalf of
the Partnership. An Authorized Person's scope of authority may be
limited by setting forth such limitation in a written document
signed by both parties hereto.
(b) "General Partner" and "Limited Partners" shall have the same
meanings as set forth in the Partnership's Limited Partnership
Agreement.
(c) "Organizational Documents" means, in the case of the Partnership,
the by-laws, confidential memorandum, partnership agreement, trust
deed, partnership or other documents constituting the Partnership.
(d) "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.
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PFPC may, in its reasonable discretion in each separate instance,
consider and rely upon instructions it receives from an Authorized
Person via electronic mail as Oral Instructions.
(e) "Written Instructions" mean (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 Partnership hereby appoints PFPC to provide
administration, accounting and investor services, in accordance with
the terms set forth in this Agreement. PFPC accepts such appointment
and agrees to furnish such services.
3. COMPLIANCE WITH RULES AND REGULATIONS.
PFPC shall comply with the applicable requirements of any laws, rules
and regulations of governmental authorities having jurisdiction with
respect to the duties to be performed by PFPC hereunder.
4. 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 Instruction or
Written Instruction 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 in its reasonable
business judgment that any Oral Instruction or Written Instruction
received hereunder is not in any way inconsistent with the
provisions
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of Organizational Documents or this Agreement or of any vote,
resolution or proceeding of the Partnership's General Partner,
unless and until PFPC receives Written Instructions to the
contrary.
(c) The Partnership agrees to forward to PFPC Written Instructions
confirming Oral Instructions (except where such Oral Instructions
are given by PFPC or its affiliates) 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.
5. 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) Protection of PFPC. PFPC shall be indemnified by the Partnership
and without liability for any action PFPC takes or does not take
in reliance upon authorized directions or advice or Oral
Instructions or Written Instructions PFPC receives from or on
behalf of the Partnership and which PFPC believes, in good faith
and in its reasonable business judgment, to be consistent with
those directions or advice and Oral Instructions or Written
Instructions. Nothing in this section shall be construed so as to
impose an obligation upon PFPC to seek such directions or advice
or Oral Instructions or Written Instructions.
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6. 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. 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. Any such books or 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 Partnership's
books of account;
(ii) records of the Partnership's securities transactions; and
(iii) any documents generated or received by PFPC in the ordinary
course of business pertaining to administration,
accounting, and investor services matters of the
Partnership or to the compensation payable to PFPC.
PFPC may house these records in a third party storage facility.
7. 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 Partnership or PFPC, their respective
subsidiaries and affiliated companies; (b) any scientific or technical
information, design,
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process, procedure, formula, or improvement that is commercially
valuable and secret in the sense that its confidentiality affords the
Partnership 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
Confidential Information and shall not be subject to such
confidentiality obligations if: (i) it is already in the public domain
through no fault of the receiving party; (ii) to the extent necessary,
it is disclosed to consultants, auditors and attorneys who have entered
into confidentiality agreements similar to the one set forth herein, or
to the employees of PFPC, the Partnership or the General Partner who
must have access to the Confidential Information; (iii) it is disclosed
as required by law, courts, governmental agencies, regulatory
Authorities, or self-regulatory authorities; or (iv) is essential to
the defense of any claim or cause of action asserted against the
receiving party (provided the receiving party will provide the other
party written notice of the same, to the extent such notice is
permitted and refrain from making such disclosure for the maximum
allowable period and take all appropriate action to maintain the
confidentiality of such information during such defense, including
without limitation, filing documents containing any confidential
information under seal).
8. 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 with
respect to the Partnership. PFPC shall take all reasonable action in
the performance of its duties under this Agreement to assure that the
necessary
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information is made available to such accountants for the expression of
their opinion, as required by the Partnership.
9. INTELLECTUAL PROPERTY. 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
created or developed by PFPC and used in connection with the services
provided by PFPC to the Partnership. Partnership and General Partner
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 created or developed by
Partnership and General Partner or their affiliates and used in
connection with the services provided by PFPC to 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 practicable 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, negligence or reckless disregard of its duties or obligations
under this Agreement.
11. COMPENSATION. As compensation for services set forth herein that are
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.
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12. INDEMNIFICATION. PFPC shall indemnify and hold Partnership and/or
General Partner harmless from any and all expenses, costs, damages, or
causes of action, including, but not limited to, reasonable attorney's
fees, incurred by the Partnership and/or the General Partner as the
result of the unauthorized acts of PFPC, its employees, agents, or
arising out of PFPC's negligence, willful misconduct, or breach of this
Agreement. Partnership and/or the General Partner shall indemnify and
hold PFPC harmless from any and all expenses, costs, damages, or causes
of action, including, but not limited to, reasonable attorney's fees,
incurred by PFPC in connection with this Agreement and not resulting
from the unauthorized acts of PFPC, its employees or agents, the
negligence or willful misconduct of PFPC in the performance of such
obligations and duties or by reason of its breach of this Agreement.
The provisions of this Section 12 shall survive termination of this
Agreement.
13. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty hereunder to take any action on behalf
of the Partnership except as specifically set forth herein or as
may be specifically agreed to in writing by PFPC and the
Partnership. 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 negligence, willful
misconduct, or breach of this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, PFPC
shall not be
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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 (whether contained
anywhere in Sections 14-16 or otherwise) to the contrary,
Partnership 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
reasonable interpretation of tax positions or its reasonable
interpretation of relevant circumstances (as determined by PFPC)
in providing such tax services and in determining methods of
calculating portfolio performance to be used, and that (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 a
result of PFPC's negligence or willful misconduct.
(d) Notwithstanding anything in this Agreement to the contrary,
without limiting anything in the immediately preceding sentence,
Partnership hereby acknowledges
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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
substantially due to PFPC's negligence or willful misconduct.
(e) Notwithstanding anything in this Agreement to the contrary,
neither party nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, provided
that the foregoing limitation shall not apply to the extent such
damages arise out of PFPC's gross negligence, intentional acts or
willful misconduct.
(f) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
(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 Partnership or for
any failure to discover any such error or omission.
(h) The provisions of this Section 13 shall survive termination of
this Agreement.
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following accounting services if required with
respect to the Partnership:
(i) Journalize investment, capital and income and expense
activities;
(ii) Record futures trading activity by receiving a data file
from each of the Partnership's futures brokers at the end
of each month and posting the activity to the Fund's
general ledger;
(iii) Calculate contractual expenses, including management fees
and incentive allocation, as applicable, in accordance with
the Partnership's Limited Partnership Agreement;
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(iv) Post to and prepare the Statement of Assets and Liabilities
and the Statement of Operations in U.S. dollar terms;
(v) Monitor the expense accruals and notify an officer of the
Partnership of any proposed adjustments;
(vi) Control all disbursements and authorize such disbursements
upon Written Instructions;
(vii) Calculate capital gains and losses;
(viii) Determine net income;
(ix) Determine applicable foreign exchange gains and losses on
payables and receivables;
(x) Obtain futures market quotes and currency exchange rates
directly from the Partnership's futures brokers, or such
other source designated by the Partnership's General
Partner, and in either case calculate the market value of
the Partnership's investments in accordance with applicable
valuation policies or guidelines provided by the
Partnership to PFPC and acceptable to PFPC;
(xiv) Transmit or mail a copy of the portfolio valuation to the
Adviser as agreed upon between the Partnership and PFPC;
(xv) Arrange for the computation of the net asset value in
accordance with the provisions of the offering memorandum;
and
(xvi) Perform all other accounting services necessary in
connection with the Partnership, as directed by the
Partnership and/or General Partner.
15. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following administration services if required
with respect to the Partnership:
(i) Supply various normal and customary Partnership statistical
data as requested on an ongoing basis;
(ii) Prepare for execution and file the Partnership's Federal
form 1065 and state tax returns.
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(iii) Prepare and coordinate printing of Partnership's annual
reports;
(iv) Copy the General Partner on routine correspondence sent to
Limited Partners; and
(v) Perform such additional administrative duties necessary in
connection with the Partnership, as directed by the
Partnership and/or General Partner.
16. DESCRIPTION OF INVESTOR SERVICES ON A CONTINUOUS BASIS. PFPC will
perform the following functions:
(i) Maintain the register of Limited Partners of the
Partnership and enter on such register all issues,
transfers and repurchases of interests in the Partnership;
(ii) Arrange for the calculation of the issue and repurchase
prices of interests in the Partnership in accordance with
the Limited Partnership Agreement;
(iii) Allocate income, expenses, gains and losses to individual
Partners' capital accounts in accordance with the
Partnership's Limited Partnership Agreement;
(iv) Calculate the Incentive Allocation, if applicable, in
accordance with the Limited Partnership Agreement and
reallocate corresponding amounts from the applicable
Limited Partners' capital accounts to the General Partners'
capital account;
(v) Prepare and mail annually to partners any required Form K-1
in accordance with applicable tax regulations; and
(vi) Perform all other investor services necessary in connection
with the Partnership, as directed by the Partnership and/or
General Partner.
17. DURATION AND TERMINATION.
(a) This Agreement shall continue until terminated by the Partnership
or by PFPC on sixty (60) days' prior written notice to the other
party. In the event the Partnership gives notice of termination
without cause for such 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
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provider, if there are more than one), and all reasonable trailing
expenses incurred by PFPC, will be borne by the Partnership. In
the event that PFPC gives notice of termination without having
cause for such termination, all reasonable expenses associated
with the movement (or duplication) of records and materials and
conversion thereof to a successor service provider 9or each
successive service provider if there are more than one), and all
reasonable trailing expenses incurred by the Partnership and the
General Partners, as well as PFPC, will be borne by PFPC.
(b) Upon occurrence of any of the following events, the party not
subject to such event shall have the right to immediately
terminate this Agreement upon written notice to the other party:
(i) either party ceases doing (or gives notice of ceasing to do)
business and its business is not continued by another corporation
or entity who has agreed to assume its obligations, (ii) either
party becomes insolvent or files for or becomes a party to any
involuntary bankruptcy, receivership or similar proceeding, and
such involuntary proceeding is not dismissed within forty-five
(45) calendar days after filing, or (iii) either party makes an
assignment for the benefit of creditors.
18. CHANGE OF CONTROL. Notwithstanding any other provision of this
Agreement, in the event of an agreement to enter into a transaction
that would result in a Change of Control of the Fund's adviser or
sponsor, the Fund's ability to terminate the Agreement pursuant to
Section 17 will be suspended from the time of such agreement until two
years after the Change of Control. For purposes of this section,
"Change of Control" shall be defined as a change in ownership or
control (not including transactions between wholly-owned
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direct or indirect subsidiaries of a common parent) of 25% or more of
the beneficial ownership of the shares of common stock or shares of
beneficial interest of the Fund's adviser or sponsor or of either of
its parent(s).
19. NOTICES. All notices and other communications, including Written
Instructions but excluding Oral 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 seven 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 301 Bellevue
Parkway, Wilmington, DE 19809, attn: President (or such address as PFPC
may inform the Partnership in writing); (b) if to the Partnership, at
the address of the Partnership; or (c) if to neither of the foregoing,
at such other address or additional addresses 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 majority-owned direct or indirect subsidiary of
PFPC or of The PNC Financial Services Group, Inc., provided that PFPC
gives the Partnership 60 days prior written notice of such assignment
or delegation.
22. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of
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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 Partnership 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 prior written notice
to PFPC.
(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) Information. The Partnership will provide such information and
documentation as PFPC may reasonably request in connection with
services provided by PFPC to the Partnership.
(e) 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.
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(f) 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.
(g) 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.
(h) No Representations or Warranties. Except as expressly provided in
this Agreement, PFPC hereby disclaims all representations and
warranties, express or implied, made to the Partnership 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.
(i) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof
by such party.
(j) 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
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Partnership'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 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:
Title:
QUADRIGA SUPERFUND, L.P.
By:
Title:
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