EXHIBIT 9.(c)
THE XXXXXX SQUARE MULTI-MANAGER FUND
FUND SECRETARIAL SERVICES AGREEMENT
THIS FUND SECRETARIAL SERVICES AGREEMENT is made the 26th day of
January, 1998, between The Xxxxxx Square Multi-Manager Fund, a Massachusetts
business trust (the "Fund"), having its principal place of business in
Wilmington, Delaware, and Xxxxxx Square Management Corporation, a corporation
organized under the laws of Delaware ("RSMC"), having its principal place of
business in Wilmington, Delaware.
WHEREAS, the Fund is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company
and offers for public sale distinct series of shares of beneficial interest, par
value $0.01 per share, each corresponding to a distinct portfolio ("Portfolio");
WHEREAS, each share of a Portfolio represents an undivided interest in
the assets, subject to the liabilities, allocated to that Portfolio and each
Portfolio has a separate investment objective and policies;
WHEREAS, RSMC presently serves as manager of the Fund pursuant to a
Fund Management Agreement dated December 2, 1989;
WHEREAS, the Fund wishes to divide, on a mutually exclusive basis, the
services which RSMC has heretofore provided, for and on behalf of the Fund,
pursuant to an Administration Agreement dated December 31, 1992 between the Fund
and RSMC so that, as of and after the date of this Agreement, RSMC will be
solely responsible for providing the services set forth in this Agreement for
and on behalf of the Fund, and PFPC Inc. ("PFPC") will be solely responsible for
providing, pursuant to a separate Administration and Accounting Services
Agreement of even date herewith, for and on behalf of the Fund, the
administrative services contemplated by the Administration and Accounting
Services Agreement; and
WHEREAS, RSMC wishes to provide the services set forth within this
Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained in this Agreement, the Fund and RSMC agree as follows:
1. APPOINTMENT. The Fund hereby appoints and employs RSMC as agent to
perform the services described in this Agreement for the Fund, such
appointment to take effect on January 26, 1998. RSMC shall act under
such appointment and perform the obligations thereof upon the terms and
conditions hereinafter set forth and in accordance with the principles
of principal and agent as enunciated by applicable common law.
2. DOCUMENTS. The Fund has furnished RSMC copies of the Fund's Declaration
of Trust, Bylaws, Advisory Contracts, Distribution Agreement,
Administration and Accounting Services Agreement, Custodian Contract,
Sub-Custodian Contract, Transfer Agency Agreement, current Prospectuses
and Statements of Additional Information and all forms relating to any
plan, program or service offered by the Fund. The Fund shall furnish
promptly to RSMC a copy of any amendment or supplement to the
above-mentioned documents. The Fund shall furnish promptly to RSMC any
additional documents necessary for it to perform its functions
thereunder or such other documents as RSMC shall request.
3. FUND SECRETARIAL SERVICES . Subject to the direction and control of the
Board of Trustees (the "Trustees") of the Fund, and to the extent not
otherwise the responsibility of, or provided by, the Fund or other
service providers to the Fund, RSMC shall provide the following
services for and on behalf of the Fund:
(a) Supply:
(i) office facilities and equipment (which may be in RSMC's or
its affiliates' or agents' own offices) as necessary to
service the non-investment related activities of the Fund;
(ii) non-investment related statistical and research data;
(iii) executive and administrative services; and
(iv) personnel to serve as officers of the Fund, if requested and
elected by the Trustees.
(b) Furnish support for the Fund's Secretary in the performance of
any or all of his or her duties as the same may be assigned or
modified, from time to time, by the Trustees or President of the
Fund. As of the date of this Agreement, such duties include the
following:
(i) preparation and distribution (or cause the preparation
and/or distribution) of all annual calendars, periodic
notices, agendas, minutes, reports and other materials
necessary for the timely and efficient conduct of meetings
of the Trustees and shareholders of the Fund;
(ii) preparation (or cause the preparation), and arranging for
the filing, printing and distribution, as necessary, of
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preliminary and definitive proxy solicitation materials, and
post-effective amendments to the Fund's registration
statement;
(iii) arranging for the securing, timely and compliant renewal
and maintenance of all required fidelity bonds and, as
instructed, other insurance policies for the protection of
the Fund, its officers and/or Trustees;
(iv) preparation and administration (or oversight of the
administration) of any and all personal investing code(s) of
ethics adopted by the Fund;
(v) aid the Fund's President in furnishing letters or other
correspondence to be included in reports or other
communications with Fund shareholders;
(vi) serve as principal point of contact, on behalf of the Fund,
with the Fund's distributor as to consultation regarding the
retention of specific dealers, and the advance review and
approval of the use of specific advertising and sales
literature, by the distributor for the purpose of selling
Fund shares; and
(vii) serve as principal point of contact, on behalf of the Fund,
with the Fund's administration and accounting services
agent, auditor(s) and legal counsel.
4. EXPENSES OF THE FUND. The Fund agrees that it will pay all its expenses
other than those expressly stated to be payable by RSMC hereunder,
which expenses payable by the Fund shall include, without limitation,
all costs and fees payable to, for or otherwise incident to:
(a) Investment advisory services; fund administration and
accounting services; and all legal, auditing and related
consulting services procured for and on behalf of the Fund;
(b) Holding meetings of the Trustees and Fund shareholders;
(c) Members of the Trustees who are not "interested persons" of
the Fund;
(d) Maintenance of the Fund's corporate existence, and maintenance
of the registration of its shares (and/or sales thereof) with
all pertinent state and federal securities authorities;
(e) Filing (including XXXXX conversion, assembly and
transmission), typesetting and printing, and mailing or other
dissemination, as necessary, of prospectuses, statements of
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additional information, reports, and preliminary and
definitive proxy solicitation materials to existing
shareholders of the Fund.
(f) Printing certificates representing shares of the Fund;
(g) Taxes levied against the Fund or any Portfolio;
(h) Premiums payable upon any and all fidelity bonds and insurance
policies secured for the protection of the Fund, its officers
and/or Trustees;
(i) The Fund's membership in investment company organizations; and
(j) Such non-recurring expenses as may arise, including actions,
suits or proceedings to which the Fund is a party and the
legal obligation which the Fund may have to indemnify its
Trustees and officers with respect thereto.
Except as otherwise agreed by RSMC, RSMC will not reimburse the Fund
for any Fund expenses in excess of expense limitations imposed by state
securities commissions having jurisdiction over the Fund.
5. RECORDKEEPING AND OTHER INFORMATION. RSMC shall create, maintain and
preserve all necessary records in accordance with all applicable laws,
rules and regulations, including, but not limited to, records required
by Sections 17(g), 17(j) and 31(a) of the 1940 Act and the rules
thereunder, as the same may be amended from time to time, pertaining to
the various functions (described above) to be provided by it and not
otherwise created and maintained by another party pursuant to contract
with the Fund. All such records shall be the property of the Fund at
all times and shall be available for inspection and use by the Fund.
Copies of such records shall be furnished to the Fund or its authorized
representatives at and upon the Fund's request and expense. Where
applicable, such records shall be maintained and preserved by RSMC for
the periods and in the places required by Rules 17j-1 and 31a-2 under
the 1940 Act.
6. AUDIT, INSPECTION AND VISITATION. RSMC shall make available during
regular business hours all records and other data created and
maintained pursuant to the foregoing provisions of this Agreement for
reasonable audit and inspection by the Fund, any person retained by the
Fund, or any regulatory agency having authority over the Fund.
7. COMPENSATION. For the performance of its obligations under this
Agreement, RSMC shall receive compensation from Wilmington Trust
Company, and not from the Fund.
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8. APPOINTMENT OF AGENTS. RSMC may at any time or times, in its
discretion, appoint (and may at any time remove) other parties as its
agent to carry out such of the provisions of this Agreement as RSMC may
from time to time direct; provided, however, that the appointment of
any such agent shall not relieve RSMC of any of its responsibilities or
liabilities hereunder.
9. USE OF RSMC'S NAME. The Fund shall not use the name of RSMC or any of
its affiliates in any Prospectus, SAI, sales literature or other
material relating to the Fund in a manner not approved prior thereto in
writing by RSMC; provided, however, that RSMC shall approve all uses of
its, and its affiliates' and agents', names that merely refer in
accurate terms to their appointments hereunder or that are required by
the SEC or a state securities commission; and further provided, that in
no event shall such approval be unreasonably withheld.
10. USE OF FUND'S NAME. Neither RSMC nor any of its affiliates shall use
the name of the Fund or material relating to the Fund on any forms
(including any checks, bank drafts or bank statements) for other than
internal use in a manner not approved prior thereto by the Fund;
provided, however, that the Fund shall approve all uses of its name
that merely refer in accurate terms to the appointment of RSMC
hereunder or that are required by the SEC or a state securities
commission; and further provided, that in no event shall such approval
be unreasonably withheld.
11. LIABILITY OF RSMC OR AFFILIATES. RSMC and its affiliates and agents
shall not be liable for any error of judgment or mistake of law or for
any loss suffered by the Fund in connection with the matters to which
this Agreement relates, except to the extent of a loss resulting from
willful misfeasance, bad faith or negligence on their part in the
performance of their obligations and duties under this Agreement. Any
person, even though also an officer, partner, employee or agent of RSMC
or any of its affiliates or agents who may be or become an officer of
the Fund, shall be deemed, when rendering services to the Fund as such
officer or acting on any business of the Fund as such officer (other
than services or business in connection with RSMC's duties under this
Agreement), to be rendering such services to or acting solely for the
Fund and not as an officer, partner, employee or agent or one under the
control or direction of RSMC or any of its affiliates or agents, even
though paid by one of those entities. RSMC shall not be liable or
responsible for any acts or omissions of any other predecessor
administrator or any other persons having responsibility for matters to
which this Agreement does not relates, nor shall RSMC be responsible
for reviewing any such act or omissions. RSMC shall, however, be liable
for its own acts and omissions subsequent to assuming responsibility
under this Agreement as herein provided.
12. AMENDMENTS. RSMC and the Fund shall regularly consult with each other
regarding RSMC's performance of its obligations under the foregoing
provisions. In connection therewith, the Fund shall submit to RSMC at a
reasonable time in advance of filing with the SEC copies of any amended
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or supplemented registration statement of the Fund (including exhibits)
under the Securities Act of 1933, as amended, and the 1940 Act, and, a
reasonable time in advance of their proposed use, copies of any amended
or supplemented forms relating to any plan, program or service offered
by the Fund. Any change in such materials that would require any change
in RSMC's obligations under the foregoing provisions shall be subject
to the burdened party's approval, which shall not be unreasonably
withheld. In the event that a change in such documents or in the
procedures contained therein increases the cost to RSMC of performing
its obligations hereunder by more than an insubstantial amount, RSMC
shall be entitled to receive reasonable compensation therefor.
13. DURATION, TERMINATION, ETC. The provisions of this Agreement may not be
changed, waived, discharged or terminated orally, but only by written
instrument that shall make specific reference to this Agreement and
that shall be signed by the party against which enforcement of such
change, waiver, discharge or termination is sought.
The provisions of this Agreement shall become effective on January 26,
1998, and shall continue in effect for one year from the effective
date; and shall continue thereafter unless terminated by the Fund by
sixty (60) days' written notice given to RSMC or by RSMC by six (6)
months' written notice given to the Fund; provided, however, that the
foregoing provisions of this Agreement may be terminated immediately
(a) upon the effective date of an agreement between the Fund and RSMC
pursuant to which RSMC agrees to provide to the Fund advisory services
and the further services described in this Agreement or (b) at any time
for cause either by the Fund or by RSMC in the event that such cause
shall have remained unremedied for sixty (60) days or more after
receipt of written specification of such cause. Any such termination
shall not affect the rights and obligations of the parties under
Section 11 hereof.
In the event that the Fund designates a successor to any of RSMC's
obligations hereunder, RSMC shall, at the expense and direction of the
Fund, transfer to such successor all relevant books, records and other
data established or maintained by RSMC under the foregoing provisions.
14. NOTICE. Any notice under this Agreement shall be given in writing
addressed and delivered or mailed, postage prepaid, to the other party
to this Agreement at its principal place of business.
15. SEVERABILITY. 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.
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16. GOVERNING LAW. To the extent that state law has not been preempted by
the provisions of any law of the United States heretofore or hereafter
enacted, as the same may be amended from time to time, this Agreement
shall be administered, construed and enforced according to the local
laws of the State of Delaware.
17. SHAREHOLDER LIABILITY. RSMC is hereby expressly put on notice of the
limitation of shareholder liability as set forth in the Declaration of
Trust of the Fund and agrees that any obligations assumed by the Fund
pursuant to this Agreement shall be limited in all cases to the Fund
and its assets, and if the liability relates to one or more Portfolios,
the obligations hereunder shall be limited to the assets of such
Portfolios, and RSMC shall not seek satisfaction of any such obligation
from the shareholders or any individual shareholder of the Fund. Nor
shall RSMC seek satisfaction of any such obligations from the Board of
Trustees or any individual Trustee of the Fund.
18. MISCELLANEOUS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof. 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.
This Agreement may be executed in two counterparts, each of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
THE XXXXXX SQUARE MULTI-
MANAGER FUND
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx, President
XXXXXX SQUARE MANAGEMENT
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, President
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