Exhibit (k)(1)
ADMINISTRATIVE AND INVESTOR SERVICES AGREEMENT
This ADMINISTRATIVE AND INVESTOR SERVICES AGREEMENT (the
"Agreement") is made as of February 22, 2002, by and between Xxxxxxxxxx Asset
Management, LLC, a Delaware limited liability company (the "Administrator"), and
Xxxxxxxxxx Partners Absolute Return Fund LLC, a Delaware limited liability
company (the "Company").
W I T N E S S E T H:
WHEREAS, the Company wishes to retain the Administrator to
provide certain administrative and investor services with respect to the
Company, and the Administrator is willing to furnish those services;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as follows:
1 Appointment. The Company hereby appoints the Administrator
to provide certain administrative and investor services required by the Company
for the period and on the terms set forth in this Agreement; provided that this
Agreement shall not be effective until approved by the Board of Directors (the
"Directors" and anyone of them, a "Director") of the Company. The Administrator
accepts such appointment and agrees to furnish the services herein set forth in
return for the compensation as provided in Paragraph 3 of this Agreement. If the
Company decides to modify the Administrator's duties hereunder, the Company
shall notify the Administrator in writing.
2 Services and Duties. Subject to the control of the Company
and the oversight of the Company's Directors, the Administrator undertakes to
perform the following types of services:
Performance measurement and analysis, including furnishing
performance data, statistical data and research data;
Tax and treasury services, including preparing and filing
various reports (including tax returns) or other documents required by federal,
state and other applicable laws and regulations other than those required to be
filed by the Company's custodian, investment manager or transfer agent;
Management of printing, including assisting in the preparation
and printing of all documents, private placement memoranda and reports sent to
members;
Financial reporting and assisting in the preparation of
financial statements;
At the request of the Company, assisting in the preparation of
all agendas, notices and minutes for meetings of the Company's Board of
Directors or members; assisting in the preparation of all resolutions to be
voted upon by the Board of Directors; assisting in the
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preparation of supporting information for such meetings with regard to the
duties of the Administrator under this Agreement, and collection and
distribution of supporting information for such meetings with respect to the
duties performed by other persons who provide services to the Company;
At the request of the Company, developing and monitoring
compliance procedures for the Company concerning, among other matters, adherence
of the Company to its investment objectives, policies, restrictions, tax matters
and applicable laws and regulations;
Preparing and filing Form D notices with the Securities and
Exchange Commission and monitoring state exemption filings and notices with
various states and other jurisdictions made by other agents of the Company;
Management of legal services;
Providing or arranging administrative services to the members
of the Company, including:
1. Maintaining a list of members and generally performing
all actions related to the issuance, repurchase and transfer of interests, if
any;
2. Reviewing and, subject to approval by the Directors,
accepting subscriptions for interests and accepting payment for the interests;
3. Computing and disseminating the net asset value of the
Company in accordance with the Company's Limited Liability Agreement and all
amendments thereto (the "LLC Agreement");
4. Performing all acts related to the repurchase of
interests;
5. Supervising the completion of, and furnishing, annual
financial statements of the Company, as well as monthly reports regarding the
Company's performance and net asset value, to members; and
6. Performing agreed upon services necessary in
connection with the administration of the Company, including registrar and
transfer agent functions, accounting and clerical services;
Supervising third parties retained by the Administrator, if
any, to perform any or all of the services listed above in Section (i) of this
Paragraph (2).
The Administrator's duties shall not include acting as Company
accountant, pricing the Company's portfolio, acting as transfer agent, or
performing blue sky registration services. To the extent any of these services
are performed by the Administrator, the Administrator shall be entitled to
separate compensation therefor.
In performing its duties under this Agreement, the Administrator will
(i) act in accordance with the LLC Agreement, the effective Confidential Private
Placement
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Memorandum of the Company and with the instructions and directions of the
Company, (ii) conform to and comply with the requirements of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), and all other
applicable federal or state laws and regulations, and (iii) consult with legal
counsel to and the independent public accountant for the Company, as necessary
and appropriate, on whose advice the Administrator shall be entitled to rely.
The Company will furnish the Administrator from time to time with copies of any
documents that the Administrator may reasonably request and that are necessary
for it to perform its obligations and duties under this Agreement and will
notify the Administrator as soon as possible of any matter materially affecting
the performance by the Administrator of its services under this Agreement.
3 Compensation and Allocation of Expenses.
The Company shall compensate the Administrator for its
services rendered pursuant to this Agreement in accordance with the fees set
forth in Schedule A hereto. Such fees do not include out-of-pocket disbursements
of the Administrator, for which the Administrator shall be entitled to xxxx
separately. Out-of-pocket disbursements shall include, but shall not be limited
to, the items specified in Schedule A hereto. Fees shall be payable monthly in
arrears on the first business day of each month.
The Administrator shall not be required to pay any Company
expenses except those that it has agreed to pay in connection with performing
the duties described herein or which it has agreed to pay in another written
agreement between the parties hereto.
Upon any termination of this Agreement before the end of any
month, the fee for such period shall be prorated according to the proportion
that such period bears to the full monthly period. For purposes of determining
fees payable to the Administrator, the value of the net assets of the Company
shall be computed at the time and in the manner specified in the then-current
confidential private placement memorandum and Limited Liability Company
Agreement of the Company.
The Administrator shall not be required to pay for any
services provided by other parties directly retained by the Company.
The Administrator may, from time to time, employ or associate
itself with such person or persons as the Administrator may believe to be
particularly suited to assist it in performing services under this Agreement.
Such person or persons may be officers and employees who are employed by both
the Administrator and the Company. The compensation of such person or persons
shall be paid by the Administrator, and no obligation shall be incurred on
behalf of the Company in such respect. The Administrator may apply a portion of
its fee (the "Investor Servicing Fee") toward the fees of any and all
sub-administrators, sub-servicing agents, or other persons who provide
sub-administrative or sub-investor services to the Company. The Investor
Servicing Fee may also be used to pay certain brokers, transfer agents, and
other financial intermediaries for providing services to members. The
Administrator also reserves the right to refund any and all of the Investor
Servicing Fee to certain members, to retain any and all of the Investor
Servicing Fee, or to transfer any and all
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of the Investor Servicing Fee to Funds Distributor, Inc., or any other placement
agent of the Company.
4 Administrator's Liability.
In the absence of willful misfeasance, bad faith, reckless
disregard or negligence of the obligations or duties hereunder on the part of
the Administrator, the Administrator shall not be subject to liability to the
Company or to any member of the Company for any act or omission in the course
of, or connected with, rendering services hereunder or for any losses that may
be sustained in the purchase, holding or sale of any security by the Company.
The Company shall indemnify and hold harmless the
Administrator, its partners and the members, partners, directors, officers and
employees of each of them (any such person, an "Indemnified Party") against any
loss, liability, claim, damage or expense (including the reasonable cost of
investigating and defending any alleged loss, liability, claim, damage or
expenses and reasonable counsel fees incurred in connection therewith) arising
out of the Indemnified Party's performance or non-performance of any duties
under this Agreement; provided, however, that nothing herein shall be deemed to
protect any Indemnified Party against any liability to which such Indemnified
Party would otherwise be subject by reason of willful misfeasance, bad faith or
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties under this Agreement.
No provision of this Agreement shall be construed to protect
any Director or officer of the Company, or partner or officer of the
Administrator, from liability in violation of Sections 17(h) and (i) of the
Investment Company Act.
5 Termination of Agreement.
This Agreement shall become effective on the date first set
forth above and shall remain in force unless terminated pursuant to the
provisions of subparagraph (b) of this Paragraph.
This Agreement may be terminated at any time without payment
of any penalty, upon thirty (30) days' written notice by the Company or by the
Administrator.
6 Amendment to this Agreement. 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.
7 Assignment. This Agreement shall extend to, and shall be
binding upon, the parties hereto and their respective successors and assigns.
This Agreement may be assigned by the Administrator; provided, however, that the
Company has consented in writing to such assignment. The Administrator may
delegate any duty hereunder, and no consent by the Company shall be needed
therefore; provided, however, that any such delegation does not effect a release
of the Administrator from guaranty of the fulfillment of any duty delegated by
the Administrator.
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8 Notice. Any notice or other instrument authorized or required
by this Agreement to be given in writing to the Company or the Administrator
shall be sufficiently given if addressed to that party and received by it at its
office set forth below or at such other place as it may from time to time
designate in writing.
To the Company:
Xxxxxxxxxx Partners Absolute Return Fund LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxx Xxxxxx
To the Administrator:
Xxxxxxxxxx Asset Management, LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxx Xxxxxxx
9 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California without giving
effect to the conflict of laws principles thereof; provided that nothing herein
shall be construed to preempt, or to be inconsistent with, any federal law,
regulation or rule, including the Investment Company Act and the Investment
Advisers Act of 1940, as amended, and any rules and regulations promulgated
thereunder.
10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and which
collectively shall be deemed to constitute only one instrument.
11 Captions. The captions of this Agreement are included for
convenience only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
12 Non-Exclusivity. The Company's employment of the Administrator
is not an exclusive arrangement, and the Company may, from time to time, employ
other individuals or entities to furnish it with the services provided for
herein.
13 Independent Contractor. The Administrator shall, for all
purposes herein, be deemed to be an independent contractor, and shall, unless
otherwise expressly provided and authorized to do so, have no authority to act
for or represent the Company in any way, or in any way be deemed an agent for
the Company. It is expressly understood and agreed that the services to be
rendered by the Administrator to the Company under the provisions of this
Agreement are not to be deemed exclusive, and the Administrator shall be free to
render similar or different services to others so long as its ability to render
the services provided for in this Agreement shall not be impaired thereby.
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14 Administrator's Office Facilities and Personnel. The
Administrator shall, at its own expense, maintain adequate office facilities and
staff and employ or retain such personnel and consult with such other persons as
it shall from time to time determine to be necessary to the performance of its
obligations under this Agreement. Without limiting the generality of the
foregoing, the staff and personnel of the Administrator shall be deemed to
include persons employed or retained by the Administrator to furnish statistical
information, research, and other factual information, advice regarding economic
factors and trends, information with respect to technical and scientific
developments, and such other information, advice and assistance as the
Administrator or the Company's Directors may desire and reasonably request.
15 Notice of Limited Liability Company Agreement. The
Administrator acknowledges that it has received notice of and accepts the
limitations of the Company's liability as set forth in its Limited Liability
Company Agreement. The Administrator agrees that the Company's obligations under
this Agreement shall be limited to the Company and its assets, and that the
Administrator shall not seek satisfaction of any such obligation from the
members of the Company nor from any Director, officer, employee or agent of the
Company.
16 Conflicts with Company's Governing Documents and Applicable
Laws. Nothing herein shall be deemed to require the Company to take any action
contrary to the Company's Limited Liability Company Agreement or any applicable
statute or regulation, or to relieve or deprive the Directors of the Company of
their responsibility for and control of the conduct of the affairs of the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed and delivered by their duly authorized officers
as of the date first written above.
XXXXXXXXXX ASSET MANAGEMENT, LLC
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Chief Administrative Officer
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XXXXXXXXXX PARTNERS ABSOLUTE
RETURN FUND LLC
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: Assistant Secretary
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SCHEDULE A (February 22, 2002)
ADMINISTRATIVE and investor SERVICES AGREEMENT
Xxxxxxxxxx Partners Absolute Return Fund LLC
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Category Average Daily Net Assets Annual Rate
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Administration and Investor All amounts 1.07%
Servicing Fee
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Out-of-Pocket Disbursements
o overnight delivery and courier services; postage
o telephone and telecommunication charges
o pricing services
o terminals, transmitting lines and expenses in connection
therewith
o travel outside of San Francisco area on Company business
o costs of preparing Board books, presentations and other
materials for the Board of Directors
o printing and related costs
o extraordinary expenses
Xxxxxxxxxx Partners XXXXXXXXXX ASSET
Absolute Return Fund LLC MANAGEMENT, LLC
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxx Xxxxxxx
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Title: Assistant Secretary Title: Chief Administrative Officer
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