Exhibit k
FUND ADMINISTRATION AND
ACCOUNTING SERVICES AGREEMENT
BETWEEN
THE MALLARD FUND, INC.
AND
XXXXXX SQUARE MANAGEMENT CORPORATION
THIS ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT made this 27th day
of August, 1997, between The Mallard Fund, Inc., a Maryland corporation
(hereinafter the "Fund"), having its principal place of business in
Pennsylvania, and Xxxxxx Square Management Corporation, a Delaware corporation
(hereinafter "Xxxxxx Square"), having its principal place of business in
Wilmington, Delaware.
WHEREAS, the Fund is registered under the Investment Company Act of 1940,
as amended ("1940 Act"), as an closed-end management investment company and has
issued, or plans to issue, for public sale, shares of common stock ("Shares"),
par value $0.001 per share;
WHEREAS, the Fund desires to employ Xxxxxx Square to provide certain fund
administration and accounting services;
WHEREAS, Xxxxxx Square is willing to furnish such services to the Fund on
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the Fund and Xxxxxx Square agree as follows:
1. APPOINTMENT. The Fund hereby appoints Xxxxxx Square to provide certain
administration and accounting services to the Fund for the period and on the
terms set forth in this Agreement. Xxxxxx Square accepts such appointment and
agrees to furnish the services herein set forth in return for the compensation
provided for in Section 18 of this Agreement. Xxxxxx Square agrees to comply
with all relevant provisions of the 1940 Act and applicable rules and
regulations thereunder, and to remain open for business on any day on which the
New York Stock Exchange, the Philadelphia branch office of the Federal Reserve
and Wilmington Trust Company are open for business.
2. DOCUMENTS. The Fund has furnished Xxxxxx Square with copies
properly certified or authenticated of each of the following:
a. The Fund's Articles of Incorporation filed with the
Secretary of State of Maryland on October 15, 1996 and all amendments thereto
and restatements thereof;
b. The Fund's By-laws and all amendments thereto and
restatements thereof (such By-laws, as presently in effect as they shall from
time to time be amended or restated, are herein called "By-laws");
c. Resolutions of the Fund's Board of Directors authorizing
the appointment of Xxxxxx Square to provide certain fund administration and
accounting services to the Fund and approving this Agreement;
d. Schedule B identifying and containing the signatures of the
Fund's officers and other persons ("Authorized Persons") authorized to issue
"Oral Instructions" and/or "Written Instructions" (all as hereinafter defined)
on behalf of the Fund;
e. The Fund's Notification of Registration filed pursuant to
Section 8(a) of the 1940 Act with the Securities and Exchange Commission
("SEC") on October 15, 1996;
f. The Fund's Registration Statement on Form N-2 under the
Securities Act of 1933 (the "1933 Act") (File No. 333-26791) and under the
1940 Act (File No. 811-7861), as filed with the SEC relating to the Fund and
the Fund's Shares, and all amendments thereto;
g. Copies of the executed Fund agreements listed on Schedule C
attached hereto; and
h. If required, a copy of either (i) a filed notice of eligibility
to claim the exclusion from the definition of "commodity pool operator"
contained in Section 2(a)(1)(A) of the Commodity Exchange Act ("CEA") that is
provided in Rule 4.5 under the CEA, together with all supplements as are
required by the Commodity Futures Trading Commission ("CFTC"), or (ii) a letter
which has been granted the Fund by the CFTC which states that the Fund will not
be treated as a "pool" as defined in Section 4.10(d) of the CFTC's General
Regulations, or (iii) a letter which has been granted the Fund by the CFTC which
states that CFTC will not take any enforcement action if the Fund does not
register as a "commodity pool operator."
The Fund will xxxxxxx Xxxxxx Square from time to time with copies,
properly certified or authenticated, of all additions, amendments or supplements
to the foregoing, if any.
3. INSTRUCTIONS CONSISTENT WITH ARTICLES OF INCORPORATION, ETC.
------------------------------------------------------------
a. Unless otherwise provided in this Agreement, Xxxxxx Square shall
act only upon Oral and Written Instructions. "Oral Instructions" as used in this
Agreement shall mean oral instructions actually received by Xxxxxx Square from
an Authorized Person or from a person reasonably believed by Xxxxxx Square to be
an Authorized Person. "Written Instructions" as used in this Agreement shall
mean written instructions signed by two Authorized Persons, delivered by hand,
mail, telegram, cable, telex or facsimile, and actually received by Xxxxxx
2
Square. "Authorized Person" used in this Agreement means any officer of the Fund
and any other person, whether or not any such person is an officer of the Fund,
duly authorized by the Board of Directors of the Fund to give Oral and Written
Instructions on behalf of the Fund and certified by the Secretary or an
Assistant Secretary of the Fund or any amendment thereto as may be received by
Xxxxxx Square from time to time. Although Xxxxxx Square may know of the
provisions of the Articles of Incorporation and By-laws of the Fund, Xxxxxx
Square in its capacity under this Agreement may assume that any Oral or Written
Instructions received hereunder are not in any way inconsistent with any
provisions of such Articles of Incorporation or By-laws or any vote, resolution
or proceeding of the shareholders, or of the Board of Directors, or of any
committee thereof.
b. Rodney Square shall be entitled to rely upon any Oral and/or
Written Instructions actually received by Xxxxxx Square pursuant to this
Agreement. The Fund agrees to forward to Xxxxxx Square Written Instructions
confirming Oral Instructions in such manner that the Written Instructions are
received by Xxxxxx Square, whether by hand delivery, telex, facsimile or
otherwise, by the close of business of the same day that such Oral Instructions
are given to Xxxxxx Square. The Fund agrees that the fact that such confirming
Written Instructions are not received by Xxxxxx Square shall in no way affect
the validity of the transactions or enforceability of the transactions
authorized by the Fund by giving Oral Instructions. The Fund agrees that Xxxxxx
Square shall incur no liability to the Fund in acting upon Oral Instructions
given to Xxxxxx Square hereunder concerning such transactions.
4. FUND ADMINISTRATION. Subject to the direction and control of the
Fund and to the extent not otherwise the responsibility of, or provided by,
other service or supply agents of the Fund, Xxxxxx Square shall provide the
following administrative services:
a. Supply:
(1) office facilities (which may be in Xxxxxx Square's or
its affiliates' own offices);
(2) non-investment related statistical and research data;
(3) executive and administrative services;
(4) stationery and office supplies at Fund expense; and
(5) corporate secretarial services, such as the preparation
and distribution of minutes and materials at Fund expense
for meetings of the Board of Directors or shareholders;
3
b. Provide personnel to serve as officers of the Fund if so
elected by the Board of Directors;
c. Prepare and file, if necessary, documents necessary to maintain
the Fund's corporate existence with the State of Maryland, annual, semi-annual
and any quarterly reports to the Fund's shareholders and reports of the Fund
with the SEC, post-effective amendments to the Fund's Registration Statement on
Form N-2, Form N-SAR filings, prospectus supplements and the Fund's fidelity
bond;
d. File, coordinate printing and mailing, and assist in the
preparation of proxy and/or information statements.
e. Monitor the Fund's compliance with the investment restrictions
and limitations as stated in the Fund's Registration Statement, the 1940 Act,
and limitations necessary for the Fund to continue to qualify as a "regulated
investment company" under Subchapter M of the Internal Revenue Code of 1986, as
amended (the "Code"), or any successor statute;
f. Prepare and distribute to appropriate parties notices
announcing the declaration of dividends and other distributions to
shareholders and prepare necessary tax and regulatory notices;
g. Prepare financial statements and footnotes and other
financial information with such frequency and in such format as required to
be included in reports to shareholders and the SEC; and
h. Assist the Fund in the pursuit of any authorized offers for
tender, or other transactions for repurchase of Fund Shares.
5. FUND ACCOUNTING.
---------------
a. Rodney Square shall provide the following accounting
functions on a daily basis:
(1) Journalize the Fund's investment, capital share and
income and expense activities;
(2) Verify investment buy/sell trade tickets when received
from the Fund;
(3) Maintain individual ledgers for investment securities;
(4) Maintain historical tax lots for each security;
4
(5) Reconcile cash and investment balances of the Fund with
the Custodian, and provide the Fund with the beginning
cash balance available for investment purposes;
(6) Update the cash availability throughout the day as
required by the Fund;
(7) Post to and prepare the Fund's Statement of Assets and
Liabilities and Statement of Operations;
(8) Calculate expenses payable pursuant to the Fund's
various contractual obligations;
(9) Control all disbursements from the Fund and authorize
such disbursements upon Written Instructions;
(10) Calculate capital gains and losses;
(11) Determine the Fund's net income; and
(12) Prepare and monitor the expense accruals and notify Fund
management of any proposed adjustments.
b. In addition, Xxxxxx Square will:
(1) Prepare quarterly financial statements, which will
include without limitation the Schedule of Investments,
the Statement of Assets and Liabilities, the Statement
of Operations, the Statement of Changes in Net Assets,
the Cash Statement, and the Schedule of Capital Gains
and Losses;
(2) Prepare quarterly security transactions summaries;
(3) Prepare quarterly broker security transactions
summaries;
(4) At such times as stated in the Fund's then current
prospectus:
a. At the Fund's expense obtain security market prices
or if such market prices are not readily available,
then obtain such prices from sources approved by the
Fund, and in either case calculate the market or
fair value of the Fund's investments;
5
b. In the case of debt instruments with remaining
maturities of sixty (60) days or less, calculate the
amortized cost value of those instruments;
c. Transmit or mail a copy of the portfolio valuations
to the Fund;
d. Compute the net asset value per Share of the Fund;
e. Compute the Fund's yields, total returns, expense
ratios and portfolio turnover rate;
(5) Supply various Fund statistical data as requested on an
ongoing basis;
(6) Assist in the preparation of support schedules necessary
for completion of the Fund's Federal and state tax
returns;
(7) Assist in the preparation and filing of the Fund's
annual and semiannual reports with the SEC on Form
N-SAR;
(8) Assist in the preparation and filing of the Fund's
annual, semiannual and any quarterly reports to
shareholders and any proxy and/or information
statements;
(9) Monitor the Fund's status as a regulated investment
company under Subchapter M of the Internal Revenue Code
of 1986 (the "Code"), as amended from time to time;
(10) Determine the amount of dividends and other
distributions payable to shareholders as necessary to,
among other things, maintain the Fund's qualification as
a regulated investment company under the Code; and
(11) Furnish data necessary for the Fund's transfer agent to
prepare Form 1099 reports and notices.
6. RECORDKEEPING AND OTHER INFORMATION. Xxxxxx Square shall create and
maintain all necessary records in accordance with all applicable laws, rules and
regulations, including, but not limited to, records required by Section 31(a) of
6
the 1940 Act and the rules thereunder, as the same may be amended from time to
time, pertaining to the various functions (described above) performed by it and
not otherwise created and maintained by another party pursuant to contract with
the Fund. All records shall be the property of the Fund at all times and shall
be available for inspection and use by the Fund or the Fund's authorized
representatives. Upon reasonable request of the Fund, copies of such records
shall be provided by Xxxxxx Square to the Fund or the Fund's authorized
representatives at the Fund's expense. Where applicable, such records shall be
maintained by Xxxxxx Square for the periods and in the places required by Rule
31a-2 under the 1940 Act.
7. LIAISON WITH ACCOUNTANTS. Xxxxxx Square shall act as liaison with the
Fund's independent public accountants and shall provide account analysis, fiscal
year summaries and other audit related schedules. Xxxxxx Square shall take all
reasonable action in the performance of its obligations under this Agreement to
assure that the necessary information is made available to such accountants for
the expression of their opinion, as such may be required by the Fund from time
to time.
8. EXPENSES OF THE FUND. The Fund agrees that it will pay all the Fund's
expenses, other than those expressly stated to be payable by Xxxxxx Square
hereunder, which expenses payable by the Fund shall include, without limitation:
a. Fees payable for investment advisory services, if any;
b. Fees payable for services provided by the Fund's independent
public accountants;
c. The cost of obtaining quotations for calculating the value of
the Fund's assets;
d. Taxes, if any, levied against the Fund;
e. Brokerage fees, xxxx-ups and commissions in connection with
the purchase and sale of portfolio securities;
f. Costs, including the interest expense, of borrowing money;
g. Costs and/or fees incident to holding meetings of the Board of
Directors and shareholders, preparation (including typesetting, printing and
XXXXX conversion charges) and mailing of prospectuses, reports and proxy
materials to the existing shareholders of the Fund, filing of reports with
regulatory bodies, maintenance of the Fund's existence, and registration of Fund
Shares with federal and state (if applicable) securities authorities;
7
h. Legal fees and expenses;
i. Costs of printing share certificates representing Fund
Shares;
j. Fees payable to, and expenses of, members of the Directors
who are not "interested persons" of the Fund;
k. Out-of-pocket expenses incurred in connection with the
provision of administration and accounting services;
l. Premiums payable on the fidelity bond required by Section
17(g) of the 1940 Act, and any other premiums payable on insurance policies
related to the Fund's business and its portfolio(s) investment activities;
m. Fees, voluntary assessments and other expenses incurred in
connection with the Fund's membership in investment company organizations; and
n. Such non-recurring expenses as may arise, including actions,
suits or proceedings to which the Fund is a party, and the contractual
obligation which the Fund may have to indemnify its Directors and officers with
respect thereto.
Except as otherwise agreed by Xxxxxx Square, Xxxxxx Square will not
reimburse the Fund for (or have deducted from its fee payable under this
Agreement) any Fund expenses in excess of any expense limitations imposed by
state securities commissions having jurisdiction over the sale of Fund Shares.
9. AUDIT, INSPECTION AND VISITATION. Xxxxxx Square 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.
10. APPOINTMENT OF AGENTS. Neither this Agreement nor any rights or
obligations hereunder may be assigned by Xxxxxx Square without the prior written
consent of the Fund. Xxxxxx Square may, however, at any time or times, in its
discretion, appoint (and may at any time remove) other parties as its agent to
carry out such provisions of this Agreement as Xxxxxx Square may from time to
time direct; provided, however, that the appointment of any such agent shall not
relieve Xxxxxx Square of any of its responsibilities or liabilities hereunder,
and Xxxxxx Square shall give the Fund prior written notice of any such
appointments..
8
11. DELEGATION. On thirty (30) days' prior written notice to the Fund,
Xxxxxx Square may assign any part or all its rights and delegate its duties
hereunder to any wholly-owned direct or indirect subsidiary of Wilmington Trust
Company, provided that (i) the delegate agrees with Xxxxxx Square to comply with
all relevant provisions of the 1940 Act and applicable rules and regulations;
(ii) Xxxxxx Square shall remain responsible for the performance of all its
duties under this Agreement; (iii) Xxxxxx Square and such delegate shall
promptly provide such information as the Fund may request; and (iv) Xxxxxx
Square shall respond to such questions as the Fund may ask, relative to the
delegation, including (without limitation) the capabilities of the delegate.
12. USE OF XXXXXX SQUARE'S NAME. The Fund shall not use the name of Xxxxxx
Square or any of its affiliates in any Registration Statement, sales literature
or other material relating to the Fund in a manner not approved prior thereto in
writing by Xxxxxx Square; provided, however, that Xxxxxx Square shall approve
all uses of its and its affiliates' names that merely refer in accurate terms to
their appointments hereunder or that are required by the SEC; and further
provided, that in no event shall such approval be unreasonably withheld.
13. USE OF FUND'S NAME. Neither Xxxxxx Square nor any of its affiliates
shall use the name of the Fund or material relating to the Trust 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 Xxxxxx Square hereunder or that are required by the SEC;
and further provided, that in no event shall such approval be unreasonably
withheld.
14. CONFIDENTIALITY. Xxxxxx Square agrees on behalf of itself, its
employees and affiliates to treat confidentially and as proprietary information
of the Fund all records and other information relative to the Fund and its
prior, present or potential shareholders, and not to use such records and
information for any purpose other than for the performance of its
responsibilities and duties hereunder, except, after prior notification to and
approval in writing by the Fund, which approval shall not be unreasonably
withheld (for example, where Xxxxxx Square may be exposed to civil or criminal
contempt proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, or when so requested by the Fund).
9
15. EQUIPMENT FAILURE. In the event of equipment failures beyond Xxxxxx
Square's control, Xxxxxx Square shall, at no additional expense to the Fund,
take reasonable steps to minimize service interruptions, but shall have no
liability with respect thereto. Xxxxxx Square 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.
16. RIGHT TO RECEIVE ADVICE.
a. ADVICE OF FUND. If Xxxxxx Square shall be in doubt as to
any action to be taken or omitted by it, it may request, and shall receive
from the Fund Oral or Written Instructions where appropriate.
b. ADVICE OF COUNSEL. If Xxxxxx Square shall be in doubt as to any
question of law involved in any action to be taken or omitted by Xxxxxx Square
in the performance of its responsibilities pursuant to this Agreement, it may
request written advice from counsel of its own choosing (who may be the
regularly retained counsel for the Fund or Xxxxxx Square or the in-house counsel
for Xxxxxx Square, at the option of Xxxxxx Square).
c. CONFLICTING ADVICE. In case of conflict between Oral and Written
Instructions received by Xxxxxx Square pursuant to subsection (a) of this
section and written advice received by Xxxxxx Square pursuant to subsection (b)
of this section, Xxxxxx Square shall be entitled to rely on and follow the
advice received pursuant to the latter provision alone.
d. PROTECTION OF XXXXXX SQUARE. Xxxxxx Square shall be protected in
any action or inaction which it takes in reliance on any written advice or Oral
or Written Instructions received pursuant to subsections (a) or (b) of this
section. However, nothing in this section shall be construed as imposing upon
Xxxxxx Square any obligation (i) to seek such written advice or Oral or Written
Instructions, or (ii) to act in accordance with such written advice or Oral or
Written Instructions when received, unless, under the terms of another provision
of this Agreement, the same is a condition to Xxxxxx Square's properly taking or
omitting to take such action. Nothing in this subsection shall excuse Xxxxxx
Square when an action or omission on the part of Xxxxxx Square constitutes
willful misfeasance, bad faith, negligence or reckless disregard by Xxxxxx
Square of its duties under this Agreement.
10
17. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS. Except as
otherwise provided herein, the Fund assumes full responsibility for ensuring
that the Fund complies with all applicable requirements of the Securities Act of
1933, as amended (the "1933 Act"), the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the 1940 Act, the CEA, and any laws, rules and
regulations of governmental authorities having jurisdiction over the Fund and
its business activities.
18. COMPENSATION. For the performance of its obligations under this
Agreement, the Fund shall pay Xxxxxx Square in accordance with the fee
arrangements described in Schedule A attached hereto, as such schedule may be
amended from time to time.
The Fund shall reimburse Xxxxxx Square for all reasonable out of
pocket expenses incurred by Xxxxxx Square or its agents in the performance of
its obligations hereunder. Such reimbursement for expenses incurred in any
calendar month shall be made on or before the tenth day of the next succeeding
month.
19. INDEMNIFICATION.
a. The Fund agrees to indemnify and hold harmless Xxxxxx Square, its
directors, officers, employees, agents and representatives from all taxes,
charges, expenses, assessments, claims and liabilities including, without
limitation, liabilities arising under the 1933 Act, the 1934 Act, or the 1940
Act and any applicable state or foreign securities laws, and amendments thereto
(the "Securities Laws"), and expenses, including without limitation reasonable
attorneys' fees and disbursements, arising directly or indirectly from any
action or omission to act which Xxxxxx Square takes (i) at the request of or on
the direction of or in reliance on the advice of the Fund or (ii) upon Oral or
Written Instructions, provided however, that neither Xxxxxx Square nor any of
the foregoing persons shall be indemnified against any liability (or any
expenses incident to such liability) arising out of Xxxxxx Square's or its
directors', officers' employees', agents' or representatives' own willful
misfeasance, bad faith, negligence or reckless disregard of its duties and
obligations under this Agreement.
b. Rodney Square agrees to indemnify and hold harmless the Fund, its
directors, officers, employees, agents and representatives from all taxes,
charges, expenses, assessments, claims and liabilities, including without
limitation reasonable attorneys' fees and disbursements, arising directly or
11
indirectly out of Xxxxxx Square's or its directors', officers', employees',
agents' or representatives' own willful misfeasance, bad faith, negligence or
reckless disregard of its duties and obligations under this Agreement.
c. In order that the indemnification provisions contained in this
Section 19 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
20. RESPONSIBILITY OF XXXXXX SQUARE. Xxxxxx Square shall be under no duty
to take any action on behalf of the Fund except as specifically set forth herein
or as may be specifically agreed to by Xxxxxx Square in writing. In the
performance of its duties hereunder, Xxxxxx Square shall be obligated to
exercise care and diligence and to act in good faith and to use its best efforts
within reasonable limits in performing services provided for under this
Agreement. Xxxxxx Square shall be responsible for its own negligent failure to
perform its duties under this Agreement, but to the extent that duties,
obligations and responsibilities are not expressly set forth in this Agreement,
Xxxxxx Square shall not be liable for any act or omission which does not
constitute willful misfeasance, bad faith or gross negligence on the part of
Xxxxxx Square or reckless disregard by Xxxxxx Square of such duties, obligations
and responsibilities. Without limiting the generality of the foregoing or of any
other provision of this Agreement, Xxxxxx Square in connection with its duties
under this Agreement shall not be under any duty or obligation to inquire into
and shall not be liable for or in respect of (i) the validity or invalidity or
authority or lack thereof of any Oral or Written Instruction, notice or other
instrument which conforms to the applicable requirements of this Agreement, and
which Xxxxxx Square reasonably believes to be genuine; or (ii) delays or errors
or loss of data occurring by reason of circumstances beyond Xxxxxx Square's
control, including acts of civil or military authority, national emergencies,
labor difficulties, fire, mechanical breakdown, flood or catastrophe, acts of
God, insurrection, war, riots or failure of the mails, transportation,
communication or power supply, in which circumstances Xxxxxx Square shall take
reasonable actions to minimize loss of data therefore.
21. 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.
12
This Agreement shall become effective as of the day and year first
written above, and unless terminated as hereinafter provided, shall continue in
force for three (3) years from the date of its execution and thereafter from
year to year. This Agreement may be terminated after the initial three (3) year
period on sixty (60) days' written notice given by the Fund to Xxxxxx Square, or
by Xxxxxx Square by six (6) months' written notice given by Xxxxxx Square to the
Fund; provided, however, that this Agreement may be terminated immediately at
any time in the event of a material breach of any provision thereof either by
the Fund or by Xxxxxx Square in the event that such breach shall have remained
unremedied for sixty (60) days or more after receipt of written specification of
such breach.
Upon the termination of this Agreement, the Fund shall pay to Xxxxxx
Square such compensation as may be payable for the period prior to the effective
date of such termination, including reimbursement for any out-of-pocket expenses
reasonably incurred by Xxxxxx Square to such date. In the event that the Fund
designates a successor to any of Xxxxxx Square's obligations hereunder, Xxxxxx
Square shall, at the expense and direction of the Fund, transfer to such
successor all relevant books, records and other data established or maintained
by Xxxxxx Square under the foregoing provisions.
Upon the termination of this Agreement by the Fund within the
initial three (3) year term for any reason (including, without limitation,
liquidation or other cessation of operations of the Fund) other than Xxxxxx
Square's uncured material breach of any provision thereof, the Fund shall
further pay to Xxxxxx Square compensation, in the nature of a severance and
conversion fee, in accordance with the terms set forth in Schedule A attached
hereto, as such schedule may be amended from time to time.
22. AMENDMENTS. This Agreement or any part hereof may be changed or
waived only by an instrument in writing signed by the party against which
enforcement of such change or waiver is sought.
23. 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.
24. 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.
25. FURTHER ACTIONS. Each Party agrees to perform such further acts
and execute such further documents as are necessary to effectuate the
purposes hereof.
13
26. 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 law (without regard to law
as to conflicts of law) of the State of Delaware.
27. MISCELLANEOUS. This Agreement embodies the entire agreement and
understanding between the parties thereto, and supersedes all other matters
hereof, provided that the parties hereto may embody in one or more separate
documents their agreement, if any, with respect to Written and/or Oral
Instructions. 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 shall be binding
and shall inure to the benefits of the parties hereto and their respective
successors.
IN WITNESS WHEREOF, the parties have caused this instrument to be signed
on their behalf by their respective officers thereunto duly authorized all as of
the date first written above.
THE MALLARD FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx XX, President
-------------------------------------
Xxxxxxx X. Xxxxxxxx XX, President
XXXXXX SQUARE MANAGEMENT
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxx X. Xxxxxxxx, President
14
FUND ADMINISTRATION AND
ACCOUNTING SERVICES AGREEMENT
SCHEDULE A
THE MALLARD FUND, INC.
FEE SCHEDULE
For the services Xxxxxx Square Management Corporation ("Xxxxxx Square")
provides under the Fund Administration and Accounting Services Agreement
attached hereto, The Mallard Fund, Inc. (the "Fund") agrees to pay Xxxxxx Square
the following annual fee for rendering fund administration and accounting
services:
FEE: A minimum fee of $80,000.00, plus
0.02% of the Fund's total assets in excess of $100
-
million.
The foregoing fee shall be payable no less frequently than quarterly, in
arrears, as soon as practicable after the last day of each quarter, based on the
Fund's total assets as determined for and at the close of business on the last
day of the quarter.
Out of pocket expenses shall be reimbursed by the Fund to Xxxxxx Square or
paid directly by the Fund.
SEVERANCE AND CONVERSION FEE
In the event of termination of this Agreement by the Fund within the
initial three (3) year term thereof for any reason (including, without
limitation, liquidation or other cessation of operations of the Fund) other than
Xxxxxx Square's uncured material breach of any provision thereof, the Fund shall
pay Xxxxxx Square a fee in consideration of such severance and, if applicable,
Xxxxxx Square's undertaking to cooperate with the Fund in effecting a conversion
to the Fund's successor service provider(s), in an amount equal to one-half of
the above-stated annual fee (with the asset-based portion thereof determined as
of the Fund's most recent total asset valuation date).
15
FUND ADMINISTRATION AND
ACCOUNTING SERVICES AGREEMENT
SCHEDULE B
THE MALLARD FUND, INC.
AUTHORIZED PERSONS
The following persons have been duly authorized by the Board of Directors
to give Oral and Written Instructions on behalf of the Fund:
(Name) XXXXXXX X. XXXXXXXX XX
(Name) XXXXXXX X. XXXXXX
(Name) XXXX X. XXXXXX
(Name)
(Name)
(Name)
16
FUND ADMINISTRATION AND
ACCOUNTING SERVICES AGREEMENT
SCHEDULE C
THE MALLARD FUND, INC.
FUND AGREEMENTS SCHEDULE
1. The Custodian Contract between the Fund and Mellon Bank, N.A.,
dated May 28, 1997.
2. The Fund's resolution appointing American Stock Transfer and
Trust Company as Transfer Agent dated June 27, 1997.
3. The Investment Consulting Agreement between the Fund, Cambridge
Associates, Inc. and Cambridge Capital Advisors, Inc. dated July
1, 1997.
17
