Pre-Effective Amendment to Registration Statement of a Closed-End Investment Company — Form N-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: N-2/A Amendment No.1 216 942K
2: EX-25.2(A)(2) Operating Agreement 177 673K
3: EX-25.2(A)(3) Indenture 175 695K
4: EX-25.2(G) Investment Management Agreement 21 87K
5: EX-25.2(H)(1) Placement Agency Agreement for Common Shares 42 142K
6: EX-25.2(H)(2) Placemt Agency Agmt-Pref Shares & Revolving 30 105K
Notes
7: EX-25.2(J)(1) Custodial Agreement 62 308K
8: EX-25.2(J)(2) Sub-Custodial Agreement 8 35K
9: EX-25.2(K) Fund Services Agreement 23 62K
EXHIBIT 25.2(k)
EXECUTION COPY
FUND SERVICES AGREEMENT
o FUND ADMINISTRATION SERVICES
o FUND ACCOUNTING SERVICES
o TRANSFER AGENCY SERVICES
YORK ENHANCED STRATEGIES FUND, LLC
NOVEMBER 17, 2005
EXECUTION COPY
FUND SERVICES AGREEMENT
TABLE OF CONTENTS
SECTION PAGE
1. Appointment......................................................... 1
2. Representations and Warranties...................................... 1
3. Delivery of Documents............................................... 3
4. Services Provided................................................... 3
5. Fees and Expenses................................................... 4
6. Limitation of Liability and Indemnification......................... 6
7. Term................................................................ 8
8. Notices............................................................. 9
9. Waiver.............................................................. 9
10. Force Majeure....................................................... 9
11. Amendments.......................................................... 10
12. Severability........................................................ 10
13. Governing Law....................................................... 10
14. Confidentiality..................................................... 10
Signatures.............................................................. 11
EXECUTION COPY
FUND SERVICES AGREEMENT
TABLE OF CONTENTS (CONTINUED)
PAGE
Schedule A -- Fees and Expenses.................................... A-1
Schedule B -- Description of Fund Administration Services.......... B-1
Schedule C -- Description of Fund Accounting Services.............. C-1
Schedule D -- Description of Transfer Agency Services.............. D-1
FUND SERVICES AGREEMENT
AGREEMENT made as of November 17, 2005 by and between York Enhanced
Strategies Fund, LLC (the "Fund"), a Delaware limited liability company, and
J.P. Morgan Investor Services Co. ("J.P. Morgan"), a Delaware corporation.
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
WHEREAS, the Fund wishes to contract with J.P. Morgan to provide
certain services with respect to the Fund;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Fund hereby appoints J.P. Morgan to provide
services for the Fund, as described hereinafter, subject to the supervision of
the Board of Directors of the Fund (the "Board"), for the period and on the
terms set forth in this Agreement. J.P. Morgan accepts such appointment and
agrees to furnish the services herein set forth in return for the compensation
as provided in Section 5 of and Schedule A to this Agreement.
2. REPRESENTATIONS AND WARRANTIES.
(a) J.P. Morgan represents and warrants to the Fund that:
(i) J.P. Morgan is a corporation, duly organized and
existing under the laws of the State of Delaware;
(ii) J.P. Morgan is duly qualified to carry on its
business in the Commonwealth of Massachusetts;
(iii) J.P. Morgan is empowered under applicable laws and
by its Certificate of Incorporation and By-Laws to enter into and perform this
Agreement;
(iv) all requisite corporate proceedings have been taken
to authorize J.P. Morgan to enter into and perform this Agreement;
(v) J.P. Morgan has, and will continue to have, access
to the facilities, personnel and equipment required to fully perform its duties
and obligations hereunder;
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(vi) no legal or administrative proceedings have been
instituted or threatened which would impair J.P. Morgan's ability to perform its
duties and obligations under this Agreement;
(vii) J.P. Morgan's entrance into this Agreement shall
not cause a material breach or be in material conflict with any other
agreement or obligation of J.P. Morgan or any law or regulation applicable to
J.P. Morgan; and
(viii)assuming execution and delivery of this Agreement
by the Fund, this Agreement is J.P. Morgan's legal, valid and binding
obligation, enforceable in accordance with its terms.
(b) The Fund represents and warrants to J.P. Morgan that:
(i) the Fund is a limited liability company, duly
organized and existing and in good standing under the laws of the State of
Delaware;
(ii) the Fund is empowered under applicable laws and by
its organizational documents to enter into and perform this Agreement;
(iii) all requisite proceedings have been taken to
authorize the Fund to enter into and perform this Agreement;
(iv) the Fund is registered as an investment company
under the 1940 Act;
(v) a registration statement on Form N-2 under the 1940
Act has been filed and will be effective and will remain effective during the
term of this Agreement, and all necessary filings under the laws of the states
will have been made and will be current during the term of this Agreement;
(vi) no legal or administrative proceedings have been
instituted or threatened which would impair the Fund's ability to perform its
duties and obligations under this Agreement;
(vii) the Fund's registration statement complies in all
material respects with the 1940 Act (including the rules and regulations
thereunder) and none of the Fund's prospectuses and/or statements of additional
information contain any untrue statement of material fact or omit to state a
material fact necessary to make the statements therein not misleading; and
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(viii)the Fund's entrance into this Agreement shall not
cause a material breach or be in material conflict with (a) any other agreement
to which the Fund is bound, (b) any obligation of the Fund, or (c) any law or
regulation applicable to it.
3. DELIVERY OF DOCUMENTS. Subject to applicable laws, the Fund will
promptly furnish to J.P. Morgan such copies, properly certified or
authenticated, of contracts, documents and other related information that J.P.
Morgan may reasonably request or requires to properly discharge its duties. Such
documents may include but are not limited to the following:
(a) Resolutions of the Board authorizing the appointment of
J.P. Morgan to provide certain services to the Fund and approving this
Agreement;
(b) The Fund's Operating Agreement;
(c) The Fund's By-Laws;
(d) The Fund's Notification of Registration on Form N-8A
under the 1940 Act as filed with the Securities and Exchange Commission ("SEC");
(e) The Fund's registration statement including exhibits, as
amended, on Form N-2 (the "Registration Statement") under the 1940 Act, as filed
with the SEC;
(f) Copies of the Investment Management Agreement between the
Fund and its investment adviser (the "Advisory Agreement");
(g) The Fund's prospectus(es) relating to all funds, series,
portfolios and classes, as applicable, and all amendments and supplements
thereto (such Prospectus(es) and supplements thereto, as presently in effect and
as from time to time hereafter amended and supplemented, herein called the
"Prospectuses"); and
(i) Such other agreements as the Fund may enter into from
time to time such as securities lending agreements, futures and commodities
account agreements, brokerage agreements and options agreements.
4. SERVICES PROVIDED.
(a) J.P. Morgan will provide the following services subject
to the control, direction and supervision of the Board and in compliance with
the objectives, policies and limitations set forth in the Fund's Registration
Statement, Operating Agreement and By-Laws; applicable laws and regulations; and
all resolutions and policies implemented by the Board, of which J.P. Morgan has
been notified by the Fund:
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(i) Fund Administration;
(ii) Fund Accounting; and
(iii) Transfer Agency.
A detailed description of each of the above services is contained in Schedules
B, C and D to this Agreement.
(b) J.P. Morgan will also:
(i) provide office facilities with respect to the
provision of the services contemplated herein (which may be in the offices of
J.P. Morgan or a corporate affiliate of J.P. Morgan);
(ii) provide or otherwise obtain personnel sufficient
for provision of the services contemplated herein;
(iii) furnish equipment and other materials, which are
necessary or desirable for provision of the services contemplated herein; and
(iv) keep records relating to the services provided
hereunder in such form and manner as J.P. Morgan may deem appropriate or
advisable. To the extent required by Section 31 of the 1940 Act and the rules
thereunder, J.P. Morgan agrees that all records prepared or maintained by J.P.
Morgan relating to the services provided hereunder are the property of the Fund
and will be preserved for the periods prescribed under Rule 31a-2 under the 1940
Act, maintained at the Fund's expense, and made available in accordance with
such Section and rules.
5. FEES AND EXPENSES.
(a) As compensation for the services rendered to the Fund
pursuant to this Agreement the Fund shall pay J.P. Morgan monthly fees
determined as set forth in Schedule A to this Agreement. Such fees are to be
billed monthly and shall be due and payable upon receipt of the invoice. Upon
any termination of the provision of services under this Agreement before the end
of any month, the fee for the part of the month before such termination shall be
prorated according to the proportion which such part bears to the full monthly
period and shall be payable upon the date of such termination.
(b) For the purpose of determining fees calculated as a
function of the Fund's assets, the value of the Fund's assets shall be computed
as required by its currently effective Prospectus, generally accepted accounting
principles, and resolutions of the Board.
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(c) The Fund may request additional services, additional
processing, or special reports, with such specifications, requirements and
documentation as may be reasonably requested by the Fund. In addition,
significant regulatory and legal changes and changes in the Fund's status may
necessitate additional services, processing or reports. In either instance, if
J.P. Morgan elects to provide such services or arrange for their provision, it
shall be entitled to additional fees and expenses at its customary rates and
charges.
(d) J.P. Morgan will bear its own expenses in connection with
the performance of the services under this Agreement except as provided herein
or as agreed to by the parties. The Fund agrees to promptly reimburse J.P.
Morgan for any services, equipment or supplies ordered by or for the Fund (at
the Fund's written request) through J.P. Morgan and for any other expenses that
J.P. Morgan may incur on the Fund's behalf at the Fund's written request or as
consented to by the Fund in advance in writing. Such other expenses to be
incurred in the operation of the Fund and to be borne by the Fund, include, but
are not limited to: taxes; interest; brokerage fees and commissions; salaries
and fees of officers and directors who are not officers, directors, shareholders
or employees of J.P. Morgan, or the Fund's investment adviser or distributor;
SEC and state Blue Sky registration and qualification fees, levies, fines and
other charges (provided that such levies, fines or other charges are not the
result of J.P. Morgan's misconduct); EDGAR filing fees, processing services and
related fees; postage and mailing costs; costs of share certificates; advisory
and administration fees; charges and expenses of pricing and data services,
independent public accountants and custodians; insurance premiums, including
fidelity bond premiums; reasonable legal expenses; consulting fees; customary
bank charges and fees; costs of maintenance of organizational existence;
expenses of typesetting and printing of Prospectuses for regulatory purposes and
for distribution to current shareholders of the Fund (the Fund's distributor to
bear the expense of all other printing, production, and distribution of
Prospectuses, and marketing materials); expenses of printing and production
costs of shareholders' reports and proxy statements and materials; expenses of
proxy solicitation, proxy tabulation and annual meetings; costs and expenses of
Fund stationery and forms; costs and expenses of special telephone and data
lines and devices; costs associated with corporate [or trust], shareholder, and
Board meetings; trade association dues and expenses; reprocessing costs to J.P.
Morgan caused by third party errors; copying charges; overtime work when
necessitated by unusual client requests (when
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authorized by the Fund in advance); microfilm and storage, audio response unit
costs; corporate action services; service termination and conversion costs; any
expenses necessitated by regulatory or legal changes; and any extraordinary
expenses and other customary Fund expenses. In addition, J.P. Morgan may utilize
one or more independent pricing services to obtain securities prices and to act
as backup to the primary pricing services designated by the Fund, in connection
with determining the net asset values of the Fund. The Fund will reimburse J.P.
Morgan for the Fund's share of the cost of such services based upon the actual
usage, or a pro-rata estimate of the use, of the services for the benefit of the
Fund.
(e) All fees, out-of-pocket expenses, or additional charges
of J.P. Morgan shall be billed on a monthly basis and shall be due and payable
upon receipt of the invoice.
(f) J.P. Morgan will render, after the close of each month in
which services have been furnished, a statement reflecting all of the charges
for such month. Charges remaining unpaid after thirty (30) days shall bear
interest in finance charges equivalent to, in the aggregate, the Prime Rate (as
determined by J.P. Morgan) plus two percent per year and all costs and expenses
of effecting collection of any such sums, including reasonable attorney's fees,
shall be paid by the Fund to J.P. Morgan.
(g) In the event that the Fund is more than sixty (60) days
delinquent in its payments of monthly billings in connection with this Agreement
(with the exception of specific amounts which may be contested in good faith by
the Fund), this Agreement may be terminated upon thirty (30) days' written
notice to the Fund by J.P. Morgan, provided, however, that the Fund shall have
thirty (30) days from the date of such notice to cure such delinquent payment.
The Fund must notify J.P. Morgan in writing of any contested amounts within
sixty (60) days of receipt of a billing for such amounts. Disputed amounts are
not due and payable while they are being investigated.
6. LIMITATION OF LIABILITY AND INDEMNIFICATION.
(a) J.P. Morgan shall not be liable for (i) any error of
judgment or mistake of law or (ii) any loss or expense suffered by the Fund or
third parties, in connection with the matters to which this Agreement relates,
except for, in either case, a loss or expense caused by or resulting from J.P.
Morgan's negligence, bad faith or willful misconduct.
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(b) J.P. Morgan shall not be responsible for, and the Fund
shall indemnify and hold J.P. Morgan and its directors, officers, agents and
employees (collectively, the "Indemnitees") harmless from and against any and
all claims, liabilities, losses, damages, fines, penalties and reasonable
expenses, including reasonable out-of-pocket and incidental expenses and
reasonable legal fees ("Losses"), that may be imposed on, incurred by, or
asserted against, the Indemnitees or any of them (except for Losses caused by or
resulting from the Indemnitee's negligence, bad faith or willful misconduct), in
the performance of its/their duties hereunder, including but not limited to
those arising out of or attributable to (but excluding Losses to the extent
caused by or resulting from the Indemnitee's negligence, bad faith or willful
misconduct):
(i) any and all actions of the Indemnitees required to
be taken pursuant to this Agreement;
(ii) the reliance on or use by the Indemnitees of
information, records, or documents which are received by the Indemnitees and
furnished to it or them by or on behalf of the Fund, and which have been
prepared or maintained by the Fund or any third party on behalf of the Fund;
(iii) the Fund's refusal or failure to comply in all
material respects with the terms of this Agreement or the Fund's lack of good
faith, or its actions, or lack thereof, involving negligence or willful
misconduct;
(iv) the material breach of any representation or
warranty of the Fund hereunder;
(v) following any instructions or other directions
reasonably believed to be requests of the Fund or otherwise duly authorized,and
upon which J.P. Morgan is authorized to rely pursuant to the terms of this
Agreement;
(vi) any delays, inaccuracies, errors in or omissions
from information or data provided to J.P. Morgan by the Fund, its investment
advisers and/or sub-advisers, and providers of services by third parties that
are not affiliates of J.P. Morgan such as data services, corporate action
services, pricing services or securities brokerage;
(vii) the offer or sale of shares by the Fund in
violation of any requirement under the Federal securities laws or regulations or
the securities laws or regulations of any state, or in violation of any stop
order or other determination or ruling by any Federal agency
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or any state agency with respect to the offer or sale of such shares in such
state (1) resulting from activities, actions, or omissions by the Fund or its
other service providers (other than affiliates of J.P. Morgan) and agents, or
(2) existing or arising out of activities, actions or omissions by or on behalf
of the Fund prior to the effective date of this Agreement;
(viii)any failure of the Fund's registration statement to
comply in any material respect with the 1940 Act (including the rules and
regulations thereunder) and any other applicable laws, or any untrue statement
of a material fact or omission of a material fact necessary to make any
statement therein not misleading in a Fund's prospectus;
(ix) the actions taken by the Fund, its investment
adviser and/or sub-advisers, and its distributor in compliance with applicable
securities, tax, commodities and other laws, rules and regulations, or the
failure to so comply; and
(x) all actions, inactions, omissions, or errors caused
by third parties that are not affiliates of J.P. Morgan to whom the Fund or the
Indemnitees have assigned any rights and/or delegated any duties under this
Agreement at the request of or as required by the Fund, its investment advisers,
distributor, administrator or sponsor.
(d) In performing its services hereunder, J.P. Morgan shall
be entitled to rely on any oral or written instructions, notices or other
communications, including electronic transmissions, from the Fund and its
custodians, officers and directors, investment advisers and sub-advisers,
investors, agents and other service providers which J.P. Morgan reasonably
believes to be genuine, valid and authorized. J.P. Morgan shall also be entitled
to consult with and rely on the advice and opinions of outside legal counsel and
public accountants retained by the Fund, as necessary or appropriate.
(e) Anything in this agreement to the contrary
notwithstanding, in no event shall J.P. Morgan be liable for any indirect,
incidental, special or consequential losses or damages of any kind whatsoever
(including but not limited to lost profits), even if J.P. Morgan has been
advised of the likelihood of such loss or damage and regardless of the form of
action in which any such loss or damage may be claimed. This provision shall
survive the termination of this Agreement.
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7. TERM. This Agreement shall become effective on the date first
hereinabove written and may be modified or amended from time to time by mutual
written agreement between the parties hereto. The Agreement shall continue in
effect unless terminated by either party on 90 days' prior written notice. Upon
termination of this Agreement, the Fund shall pay to J.P. Morgan such
compensation and any out-of-pocket or other reimbursable expenses which may
become due or payable under the terms hereof as of the date of termination. In
the event of late payment or non-payment, J.P. Morgan shall have the right to
retain the records of the Fund until all fees and monies due J.P. Morgan are
paid. Termination will not affect any of the liabilities either party owes to
the other arising under this Agreement prior to such termination.
8. NOTICES. Any notice required or permitted hereunder shall be in writing
and shall be deemed effective on the date of personal delivery (by private
messenger, courier service or otherwise) or upon confirmed receipt of facsimile,
whichever occurs first, or upon receipt if by mail to the parties at the
following address (or such other address as a party may specify by notice to the
other):
If to the Fund:
767 Fifth Avenue, 17th Floor
New York, NY 10153
Attention: Adam J. Semler
Telephone: (212) 300-1300
Fax:(212) 300-1301
If to J.P. Morgan:
J.P. Morgan Investor Services Co.
73 Tremont Street
Boston, MA 02108
Attention: Legal Department
Fax: (617) 557-8616
9. WAIVER. The failure of a party to insist upon strict adherence
to any term of this Agreement on any occasion shall not be considered a waiver
nor shall it deprive such party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement. Any waiver must be in
writing signed by the waiving party.
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10. FORCE MAJEURE. J.P. Morgan will maintain and update from time to
time business continuity and disaster recovery procedures with respect to its
fund services business that it determines from time to time meet reasonable
commercial standards. J.P. Morgan shall not be responsible or liable for any
harm, loss or damage suffered by the Fund, its investors, or other third parties
or for any failure or delay in performance of J.P. Morgan's obligations under
this Agreement arising out of or caused, directly or indirectly, by
circumstances beyond J.P. Morgan's control. In the event of a force majeure, any
resulting harm, loss, damage, failure or delay by J.P. Morgan will not give the
Fund the right to terminate this Agreement.
11. AMENDMENTS. This Agreement may only be modified or amended from
time to time by mutual written agreement between the parties. No provision of
this Agreement may be changed, discharged, or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, discharge or termination is sought.
12. NO AGENCY. It is hereby acknowledged and agreed that J.P. Morgan
is acting in its capacity as an independent contractor for all purposes under
this Agreement, rather than as an agent of the Fund, and, other than as
specified above, shall have no authority to act of behalf of the Fund.
13. SEVERABILITY. If any provision of this Agreement is invalid or
unenforceable, the balance of the Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance it shall nevertheless
remain applicable to all other persons and circumstances.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICT OF LAWS..
15. CONFIDENTIALITY. In accordance with the U.S. Securities and
Exchange Commission's regulation S-P ("Regulation S-P"), nonpublic personal
financial information relating to consumers and customers of the Fund provided
by, or at the direction of the Fund to J.P. Morgan, or collected or retained by
J.P. Morgan in the course of performing its duties as transfer agent shall be
considered confidential information. J.P. Morgan agrees that it shall not use
such confidential information for any purpose other than to carry out its
obligations under this Agreement, and further agrees that it shall not give,
sell or in any way transfer or disclose such confidential information to any
person or entity, other than (i) affiliates of J.P. Morgan or
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third parties who have entered into contractual arrangements with the Fund or
with J.P. Morgan, and then only to the extent necessary to carry out the
obligations under such contractual arrangements, (ii) at the direction of the
Fund, (iii) as required by law or (iv) subject to (i) above, as permitted by law
and the Fund's privacy policies disclosed to J.P. Morgan. J.P. Morgan represents
that it has in place and shall maintain physical, electronic, and procedural
safeguards reasonably designed to protect the security, confidentiality and
integrity of, and to prevent unauthorized access to or use of records and
information related to consumers or customers of the Fund. J.P. Morgan warrants
that it shall not disclose such confidential information to any person or entity
as permitted in the previous sentence unless such person or entity has agreed to
keep such information confidential. The Fund represents to J.P. Morgan that it
has adopted a statement of its privacy policies and practices as required by
Regulation S-P and agrees to provide J.P. Morgan with a copy of that statement
annually.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their officers designated below as of the date first written above.
YORK ENHANCED STRATEGIES FUND, LLC
By: ____________________________
Name: __________________________
Title: _________________________
J.P. MORGAN INVESTOR SERVICES CO.
By: ____________________________
Name:___________________________
Title:__________________________
Fund Services Agreement-YES Fund
FUND SERVICES AGREEMENT
SCHEDULE A
FEES AND EXPENSES
FUND ACCOUNTING AND ADMINISTRATION FEES
A. Compliance, Tax and Financial Reporting Core Service Fees
$25,000 For Treasury and Compliance Services
$12,500 For Tax Services
$10,000 For Financial Reporting
B. Accounting Fees
0.5 basis point For preparation of monthly Net Asset Valuations and
fund accounting duties. The annual fee will
be based on the average aggregate principal
amount of collateral outstanding (including
eligible investments and Restricted
Investments) at the beginning and end of each
billing period. Billing periods will coincide
with the payment dates of this transaction.
Minimum annual amount is $50,000.
C. Out-of-Pocket Charges
The Funds will reimburse JPMorgan for reasonable out-of-pocket expenses
incurred on its behalf.
Fund Accounting out-of-pocket charges include, but are not limited to,
express mail, archiving, SAS 70 reviews requested by the Fund, and
printing/copying charges.
Fund Administration out-of-pocket charges include, but are not limited
to, travel to Board of Directors meetings (if applicable), overnight
courier charges, and printing/copying charges for Board Book materials,
Sarbanes-Oxley Act sub-certification process, and CCO Office Support.
Transfer Agency out of pocket expenses include, but are not limited to,
confirmations, statements, stationary, postage, courier service, forms,
telephones, record retention, wires, transcripts, microfilm and
expenses incurred at the specific direction of the funds.
D. Direct Pass-through Vendor Charges
JPMorgan will pass through to the Funds directly certain vendor charges,
such as those for pricing quotes. Pass-through charges will be based on
the information vendors and service providers used.
TRANSFER AGENCY FEES
A. Transfer Agency Core Service Fees
$20,000 Per Cusip
$25 Per Account
A-1
FUND SERVICES AGREEMENT
SCHEDULE B
GENERAL DESCRIPTION OF FUND ADMINISTRATION
AND COMPLIANCE SERVICES
J.P. Morgan's Fund Administration and Compliance Services are designed and
intended to address the Fund's routine financial and tax reporting, portfolio
compliance and general administration needs. J.P. Morgan will work closely with
the Fund's experts, such as its public accountants and legal counsel, with
respect to these services.
I. ROUTINE FINANCIAL REPORTING SERVICES
A. Semi-annual and annual reports. Prepare for review and approval
by Fund's adviser or officers, financial information for the
Fund's semi-annual reports, annual reports and financial
statements for routine prospectus updates.
B. Regular N-SAR filings. Prepare for review and approval by Fund's
adviser, officers or directors, Form N-SAR. Upon approval of the
N-SAR by the Fund's adviser or officers, J.P. Morgan will file
Form N-SAR with the SEC.
C. Form N-Q. Prepare for review and approval by Fund's adviser or
officers, Form N-Q. Upon approval of the N-Q by the Fund's
adviser or officers, J.P. Morgan will file Form N-Q with the
SEC.
D. Form N-CSR. Prepare for review and approval by Fund's adviser or
officers, Form N-CSR. Upon approval of the N-CSR by the Fund's
adviser or officers, J.P. Morgan will file Form N-CSR with the
SEC.
II. ROUTINE TAX SERVICES
A. Core Tax Services ( Included in Administration Fee)
o Includes preparation and review of the following:
o Fiscal and excise tax provisions( includes all the
following book/tax adjustments, wash sales, 1256 adjustments, 988
analysis, PFIC, defaulted bonds, REITs, straddles, QCCO, contingent
debt calculations, swaps, LPs etc.)
o Federal income, state income1 and Federal excise
tax returns (including filings by extended due dates)2;
o Year end re-characterizations, return of capital
foreign tax credit and tax exempt percentages for form 1099;
o Year end shareholder reporting requirements (state
by state, country by country, treasury income and asset percentages,
AMT, QDI, FTC);
o IRS asset diversification and good income tests;
o Periodic distributions;
_____________________________
1 JPM to the instructed by Client and/or Auditors on all applicable state filing
for each Fund services.
2 Does not include JPM signature as paid preparer on tax returns filed.
B-1
o 60 day notice information (FTC, LT capital gain
designation, tax exempt income, DRD, QDI);
o Quarterly tax exempt asset test and annual foreign
security asset test.
o Tax preparation and review of all items regarding
liquidations or mergers including completion of the final tax
provision(s), return(s) and calculations of all tax attributes.
o Support financial statement process by preparing and
reviewing the following:
o ROC SOP disclosure;
o Tax Footnote disclosure.
o Up to 25 hours of tax consultation and research per year
per Fund Complex.
o Review complex corporate actions.
o Preparation and review of one income, including capital
gains, estimate during the fund's fiscal year. Estimate assumes all
prior year tax adjustments reverse and does not include current year tax
adjustments.
B. Additional Services (subject to additional fees)
o Equalization calculations
o REMIC OID Calculations
o REIT Funds
o Mid Year QDI estimates
o Accelerated Fiscal or Excise Tax Reporting
o Tax consulting above 25 hours annually
o Signature on tax return filings as paid preparer
III. ROUTINE COMPLIANCE
J.P. Morgan will provide assistance to the Fund and its investment adviser with
respect to compliance with federal tax and securities laws. Responsibility for
such compliance services are subject to the development of a more precise
allocation of duties and responsibilities between J.P. Morgan, the adviser and
other relevant service providers. In addition, J.P. Morgan's provision of
compliance services is designed to assist the Fund and its adviser but is not
intended as an assumption by J.P. Morgan of the adviser's fiduciary duties and
legal responsibilities to the Fund.
A. Portfolio compliance. Monitor and periodically test the Fund's
compliance with such investment restrictions and other
regulatory requirements, as may be agreed to between the
adviser, J.P. Morgan and the Fund (e.g., issuer or industry
diversification, etc.).
B. Tax compliance. Monitor and periodically test, including on
required quarterly testing dates, the Fund's compliance with the
requirements of Section 851 of the Internal Revenue Code and
applicable Treasury Regulations for qualification as a regulated
investment company.
C. Policies and procedures compliance. Assist the investment
adviser with monitoring its compliance with Fund Board
directives, such as "Approved Issuers Listings for Repurchase
Agreements", Rule 17a-7, Rule 17e-1 and Rule 12d3-1 procedures.
B-2
IV. GENERAL ADMINISTRATION
A. Board materials. Prepare or compile performance and expense
information, financial reports, and compliance data and
information for inclusion in the Fund's regular quarterly Board
meeting materials.
B. Distribution calculations. Calculate dividend, interest and
other payments and distributions in respect of the Fund's
Securities in accordance with distribution policies detailed in
the Fund's prospectuses or Board resolutions. Assist the Fund in
making final determinations of distribution amounts.
C. Expense accruals. Prepare Fund, portfolio or class expense
projections, establish accruals and review on a periodic basis,
including expenses based on a percentage of average daily net
assets (e.g., management, advisory and administrative fees) and
expenses based on actual charges annualized and accrued daily
(audit fees, registration fees, directors' fees, etc.).
D. Expense payments. Arrange, if directed by the appropriate Fund
officers, for the payment of the Fund's and each Portfolio's or
class' expenses.
E. Reports to statistical service providers. Report Fund
performance to outside statistical service providers as mutually
agreed by Fund management and J.P. Morgan.
F. SEC examinations. Provide support and coordinate communications
and data collection, of records and documents held by J.P.
Morgan on the Fund's behalf, with respect to routine SEC
regulatory examinations of the Fund.
B-3
FUND SERVICES AGREEMENT
SCHEDULE C
DESCRIPTION OF FUND ACCOUNTING SERVICES
J.P. Morgan shall provide the following accounting services to the Fund:
A. Maintenance of the books and records for the Fund's assets,
including records of all securities transactions.
B. Calculation of each funds', portfolios' or classes' Net Asset
Value in accordance with the Prospectus and duly approved
valuation policies and procedures, and after the fund, portfolio
or class meets eligibility requirements, transmission to NASDAQ
and to such other entities as directed by the Fund.
C. Calculation of the Net Asset Value of each share of each fund,
portfolio or class.
D. Accounting for dividends, capital gains and interest received
and distributions made by the Fund.
E. Coordinate with the Fund's independent auditors with respect to
the annual audit, and as otherwise requested by the Fund.
F. As mutually agreed upon, J.P. Morgan will provide domestic
and/or international reports.
C-1
FUND SERVICES AGREEMENT
SCHEDULE D
DESCRIPTION OF TRANSFER AGENCY SERVICES
The following is a general description of the transfer agency services
J.P. Morgan shall provide to the Fund.
A. SECURITY HOLDER RECORDKEEPING. Maintain records showing for each
Fund security holder the following: (i) name, address,
appropriate tax certification and tax identifying number; (ii)
number of shares of each fund, portfolio or class; (iii)
historical information including, but not limited to, dividends
paid, capital commitments, outstanding principal, drawdowns,
repayments of principal, date and price of all transactions
including individual purchases and redemptions, based upon
appropriate supporting documents; and (iv) any application,
specific address, payment and processing instructions.
B. SECURITY HOLDER ISSUANCE. Record the issuance of securities of
each Fund, portfolio or class. Except as specifically agreed in
writing with any Fund, J.P. Morgan shall have no obligation when
countersigning and issuing and/or crediting securities to take
cognizance of any other laws relating to the issue and sale of
such securities except insofar as policies and procedures of the
Stock Transfer Association recognize such laws.
C. TRANSFER, PURCHASE AND REDEMPTION ORDERS. Process all orders for
the transfer,purchase and redemption of securities of each Fund
in accordance with such Fund's current prospectus, the terms of
the subscription agreements to be entered into by prospective
Fund shareholders and written transfer agency policies and
procedures agreed to from time to time (including transfer
restrictions), including electronic transmissions which the Fund
acknowledges it has authorized, or in accordance with any
instructions of the Fund or its agents which J.P. Morgan
reasonably believes to be authorized. Obtain duly executed
subscription agreements and requisite certificates of investor
eligibility from proposed transferees prior to recording
transfers of securities of the Fund.
D. SECURITY HOLDER COMMUNICATIONS. Transmit all communications by
any Fund to its security holders promptly following the delivery
by the Fund of the material to be transmitted by mail,
telephone, courier service or electronically.
E. PROXY MATERIALS. Assist with the mailing or transmission of
proxy materials, tabulating votes, and compiling and certifying
voting results.
F. RETURNED CHECKS. In the event that any check or other negotiable
instrument for the payment of securities is returned unpaid for
any reason, J.P. Morgan will take such
D-1
steps, as J.P. Morgan may deem appropriate and notify the Fund
of such action. However, the Fund remains ultimately liable for
any returned checks or negotiable instruments of its
shareholders.
H. TAX REPORTING. J.P. Morgan shall issue appropriate security
holder tax forms as required.
I. DIVIDEND AND DISTRIBUTION DISBURSING. J.P. Morgan will prepare
and mail checks, place wire transfers or credit income and
capital gain payments to security holders. Each Fund will advise
J.P. Morgan of the declaration of any dividend or distribution
and the record and payable date thereof at least five (5) days
prior to the record date. J.P. Morgan will, on or before the
payment date of any such dividend or distribution, notify the
Fund's Custodian of the estimated amount required to pay any
portion of such dividend or distribution payable in cash, and on
or before the payment date of such distribution, the Fund will
instruct its Custodian to make available to J.P. Morgan
sufficient funds for the cash amount to be paid out. If a
security holder is entitled to receive additional shares by
virtue of any such distribution or dividend, appropriate credits
will be made to each security holder's account. J.P. Morgan
shall retain from amounts otherwise distributable to any
shareholder sufficient funds for the payment of any tax that is
legally owed by the Fund under applicable law or regulations.
J.P. Morgan shall use reasonable efforts to give notice to each
shareholder of any such withholding requirement at least 10
days prior to the date of the payment from which amounts are
required to be withheld.
J. ESCHEATMENT. J.P. Morgan shall provide escheatment services only
with respect to the escheatment laws of the State of
Massachusetts, including those which relate to reciprocal
agreements with other states.
K. ANTI-MONEY LAUNDERING SERVICES. Verify security holder identity
upon opening new accounts where the subscription comes directly
to J.P. Morgan. J.P. Morgan will monitor, identify and report
security holder transactions and identify and report suspicious
activities that are required to be so identified and reported,
and provide other required reports to the U.S. Securities and
Exchange Commission, the U.S. Treasury Department, the Internal
Revenue Service or each agency's designated agent, in each case
consistent with J.P Morgan's or the Fund's AML Program or
Manual, as provided to J.P. Morgan and approved by J.P. Morgan
from time to time ("AML Program"). J.P. Morgan will place holds
on transactions in security holder accounts or freeze assets in
security holder accounts, as provided in the AML Program and
create documentation to provide a basis for law enforcement
authorities to trace illicit funds. J.P. Morgan will maintain
all records or other documentation related to security holder
accounts and transactions therein that are required to be
prepared and maintained pursuant to the AML Program, and make
the same available for inspection by (i)the designated AML
Compliance Officer, (ii) any auditor of the Fund's AML Program
or related procedures, policies or controls that have been
designated by the Fund in writing, or (iii)regulatory or law
enforcement authorities,
D-2
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and otherwise make said records or other documents available at
the direction of the designated AML Compliance Officer.
L. FULFILLMENT SERVICES. As directed by the Fund either by
telephone or in writing, J.P. Morgan will mail reasonable
quantities of prospectuses (offering memoranda), applications to
purchase securities and other information customarily sent to
prospective security holders (partners).
D-3
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘N-2/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed as of: | | 11/29/05 | | | | | | | None on these Dates |
| Filed on: | | 11/28/05 |
| | 11/17/05 | | 1 | | 4 |
| List all Filings |
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