EXHIBIT (K)(1)
MANAGEMENT AND ADMINISTRATION AGREEMENT
BY AND BETWEEN
PW FUND ADVISOR, L.L.C.
AND
CONGRESS STREET ASSOCIATES, L.P.
THIS MANAGEMENT AND ADMINISTRATION AGREEMENT (the "Agreement") is made
as of this 16th day of July, 1998, by and between PW Fund Advisor, L.L.C.
("PWFA") and Congress Street Associates, L.P. (the "Partnership").
WHEREAS, PWFA is in the business of providing, and the Partnership
wishes PWFA to provide, certain management and administrative services;
NOW THEREFORE, in consideration of the terms and conditions herein
contained, the parties agree as follows:
1. APPOINTMENT OF PWFA.
(a) The Partnership hereby appoints, and PWFA hereby accepts
appointment, to serve as the Partnership's management company. In such capacity,
PWFA agrees to provide certain management (but not investment management) and
administrative services to the Partnership. These services shall include:
(i) the provision of office space, telephone and utilities;
(ii) the provision of administrative and secretarial, clerical
and other personnel as necessary to provide the services
required to be provided under this Agreement;
(iii) the general supervision of the entities which are retained
by the Partnership to provide administrative services and
custody services to the Partnership;
(iv) the handling of investor inquiries regarding the
Partnership and providing investors with information
concerning their investment in the Partnership and capital
account balances;
(v) monitoring relations and communications between investors
and the Partnership;
(vi) overseeing the drafting and updating of disclosure
documents relating to the Partnership and assisting in the
distribution of all offering materials to investors;
(vii) maintaining and updating investor information, such as
change of address and employment;
(viii) overseeing the distribution and acceptance of investor
subscription documents and confirming the receipt of such
documents and funds;
(ix) overseeing the provision of investment advice to the
Partnership by Congress Street Management, L.L.C., the
manager of the Partnership (or any successor adviser) (the
"Manager"), and monitoring compliance by the Manager with
applicable investment policies and restrictions of the
Partnership;
(x) coordinating and organizing meetings of the Partnership's
directors (the "Directors");
(xi) preparing materials and reports for use in connection with
meetings of the Directors; and
(xii) reviewing and approving all regulatory filings required
under applicable law.
(b) All other services to be performed, and expenses related
thereto, in the operation of the Partnership shall be borne by the Partnership.
(c) Notwithstanding the appointment of PWFA to provide services
hereunder, the Directors shall remain responsible for supervising and
controlling the management, business and affairs of the Partnership.
2. PWFA FEE; REIMBURSEMENT OF EXPENSES.
(a) In consideration for the provision by PWFA of its services
hereunder, the Partnership will pay PWFA a monthly management fee of .125%
(1.50% on an annualized basis) of the Partnership's "net assets," excluding
assets attributable to the Manager's capital account (the "Fee"). "Net assets"
shall equal the total value of all assets of the Partnership, less an amount
equal to all accrued debts, liabilities and obligations of the Partnership
calculated before giving effect to any repurchase of interests.
(b) The Fee will be computed based on the net assets of the
Partnership as of the start of business on the first business day of each month,
after adjustment for any subscriptions effective on such date, and will be due
and payable in arrears within five days after the end of such month. The Fee
will be charged in each fiscal period to the capital accounts of the
Partnership's limited partners in proportion to their capital accounts at the
beginning of such fiscal period. In the event that the Fee is payable in respect
of a partial month, such fee will be appropriately pro-rated.
(c) PWFA is responsible for all costs and expenses associated
with the provision of its services hereunder. The Partnership shall pay all
other expenses associated with the conduct of its business, including the costs
and expenses of holding any meetings of the Directors that are regularly
scheduled, permitted or required to be held under the terms of the Partnership's
amended and restated limited partnership agreement, the Investment Company Act
of 1940, as amended (the "1940 Act"), or other applicable law, and the fees and
disbursements of any attorneys engaged on behalf of the Partnership.
(d) The Partnership understands that PWFA may pay a portion of
the fees received by it hereunder to an affiliate of Xxxxxx Advisors, L.L.C.
3. LIABILITY. PWFA will not be liable for any error of judgment or
mistake of law or for any loss suffered by the Partnership or its partners in
connection with the performance of its duties under this Agreement, except a
loss resulting from willful misfeasance, bad faith or gross negligence on PWFA's
part (or on the part of an officer or employee of PWFA) in the performance of
its duties hereunder or reckless disregard by it of its duties under this
Agreement.
4. EFFECTIVE DATE AND TERMINATION. This Agreement shall become
effective as of the date first noted above, and shall remain in effect for an
initial term of two years from the date of its effectiveness. This Agreement may
be continued in effect from year to year thereafter provided that each such
continuance is approved by the Directors, including the vote of a majority of
the Directors who are not "interested persons" of the Partnership, as defined by
the 1940 Act. This Agreement may be terminated by PWFA, by the Directors or by
vote of a majority of the outstanding voting securities of the Partnership at
any time, in each case upon not less than 60 days' prior written notice. This
Agreement shall also terminate automatically in the event of its "assignment,"
as such term is defined by the 1940 Act.
5. ENTIRE AGREEMENT. This Agreement embodies the entire understanding
of the parties. This Agreement cannot be altered, amended, supplemented, or
abridged, or any provisions waived, except by written agreement of the parties.
6. CHOICE OF LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York and the 1940 Act. In the event
the laws of New York conflict with the 1940 Act, the applicable provisions of
the 1940 Act shall control.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
PW FUND ADVISOR, L.L.C.
By:_______________________________
Name:
Title:
CONGRESS STREET ASSOCIATES, L.P.
By: _______________________________
Name:
Title:
