Dated
(1) GMO Alternative Asset SPC Ltd.
(2) Xxxxxxx Corporate Services (Bermuda) Ltd.
----------------------------------------------------
CORPORATE ADMINISTRATIVE
SERVICES AGREEMENT
----------------------------------------------------
XXXXXXX
CORPORATE SERVICES
CONTENTS
1 DEFINITIONS AND INTERPRETATION................................................................................ 1
2 PROVISION OF SERVICES AND INSTRUCTIONS........................................................................ 2
3 FEES FOR SERVICES............................................................................................. 2
4 COVENANTS BY THE COMPANY...................................................................................... 2
5 REPRESENTATIONS BY THE ADMINISTRATOR.......................................................................... 3
6 PERMITTED DISCLOSURES......................................................................................... 4
7 ADMINISTRATOR ACTING FOR OTHER CLIENTS........................................................................ 4
8 LIABILITY OF ADMINISTRATOR AND INDEMNITY...................................................................... 4
9 TERMINATION................................................................................................... 5
10 SETTLEMENT OF DISPUTES........................................................................................ 6
11 MISCELLANEOUS................................................................................................. 7
SCHEDULE 1.................................................................................................... 10
SCHEDULE 2.................................................................................................... 11
SCHEDULE 3.................................................................................................... 12
THIS AGREEMENT is made (in triplicate) as of the day of 2004 (the
"Commencement Date")
BETWEEN:
1. GMO ALTERNATIVE ASSET SPC LTD. of Canon's Court, 00 Xxxxxxxx Xxxxxx,
Xxxxxxxx XX 12, Bermuda (the "COMPANY"); and
2. XXXXXXX CORPORATE SERVICES (BERMUDA) LTD. of Canon's Court, 00 Xxxxxxxx
Xxxxxx, Xxxxxxxx XX 12, Bermuda (the "ADMINISTRATOR").
WHEREAS:
The Company wishes to be provided with corporate administrative services by the
Administrator and the Administrator has agreed to provide such services upon and
subject to the terms of this Agreement.
NOW THEREFORE THE PARTIES HAVE AGREED AS FOLLOWS:
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement and the Schedules hereto, where the context so
admits:
"BENEFICIARIES" means the Officers and or the Administrator's
servants or agents;
"COMPANIES ACTS" means every Bermuda statute from time to time in
force concerning companies insofar as the same applies to the
Company;
"GROUP" means the law Group of Xxxxxxx Xxxxxxxx Xxxxxx;
"OFFICER" means any individual or company whose services as a
Director, Alternate Director, Officer, Secretary (including any
temporary or assistant Secretary), Resident Representative
(including any temporary or assistant Resident Representative) or
Signatory are provided by the Administrator and includes any Officer
so provided who has ceased to act;
"PRINCIPAL" means the persons or entities identified in Schedule 1
hereto;
"SERVICES" means corporate administrative services made available to
companies by the Administrator described in Schedule 2 hereto; and
"SIGNATORY" means any individual whose services are provided by the
Administrator authorised by the Company to act as signatory on any
bank accounts established by the Company.
1.2 Words importing the singular shall include the plural and vice versa
and the masculine gender shall include the feminine and neuter
genders.
1.3 The headings are inserted for convenience and shall not affect the
construction of this document.
2 PROVISION OF SERVICES AND INSTRUCTIONS
2.1 The Administrator hereby agrees to supply the Services to the
Company from the Commencement Date.
2.2 The Administrator and the Officers are expressly authorised, in
rendering the Services and acting as Officers, to act on and rely
upon the instructions or advice received from the Company (or the
Principal), or any person they bona fide believe to be duly
authorised by the Company or the Principal, in all matters
concerning the Company and its business. Such instructions or advice
may be communicated orally or in writing, and with or without
authentication. Notwithstanding the foregoing, the Officers and the
Administrator may, at any time, do or refrain from doing any act if
they shall, in their absolute discretion, consider it proper to do
so in accordance with their duty to the Company, or the laws of any
country having jurisdiction over the Company.
3 FEES FOR SERVICES
In consideration of the Administrator's agreement to provide the
Services and appoint the Officers and in consideration of the
acceptance by the Officers of such designation, the Company agrees
to pay the Administrator, on written request, disbursements incurred
in connection with the provision of Services and fees, such fees to
consist of a basic minimum annual charge together with such
additional amounts as the time spent (at its rates from time to time
in force) and the responsibility undertaken justify. The initial
basic minimum annual charge is hereby agreed at BD$7,000.00 [CONFIRM
WITH GMO.] per annum for the Company's financial year and is subject
to review from time to time. The basic minimum annual charge shall
be paid by the Company on invoice receipt. If the Administrator
submits further invoices based upon time spent and/or responsibility
undertaken such invoices also shall be paid by the Company on
invoice receipt. The Administrator shall have no obligation to
supply any of the Services if the Company is in default concerning
fee payment.
In connection with the provision of the Services hereunder, the
Administrator, the Company and the Officers shall be entitled to
request the professional advice or services of the Group at any time
when such advice or services may reasonably be required. The costs
of the Group shall be borne by the Company or as otherwise agreed in
writing between the Group and the Company.
4 COVENANTS BY THE COMPANY
4.1 The Company hereby covenants with the Administrator that from the
Commencement Date:
4.1.1 it shall at all times and in a timely manner provide, or cause
to be provided, to the Administrator such information, records
and financial statements as are necessary in
2
order to permit the Administrator to provide the Services and
to ensure that the Company is in compliance with the Companies
Acts including without limiting the generality of the
foregoing that specified in Schedule 3 hereto;
4.1.2 it shall at all times provide the Administrator with complete
and accurate information relating to the business and affairs
of the Company which, in the opinion of the Administrator or
the Company, is necessary to enable the Officers to perform
their duties as Officers to the standard imposed by the
Companies Acts and the general law;
4.1.3 neither the Administrator nor any Officer shall be required to
incur any expense in the discharge of their respective
obligations or make any payment on behalf of the Company, save
in circumstances where they have received sufficient funds in
advance to meet such expense; and
4.1.4 it shall at all times and in a timely manner obtain all advice
to ensure its activities and affairs are carried out so as to
comply with all applicable laws, including but not limited to
taxation laws and money laundering laws.
5 REPRESENTATIONS BY THE ADMINISTRATOR
5.1 The Administrator hereby represents to the Company that:
5.1.1 while the Company is in existence, and the Administrator is
serving pursuant to the terms of this Agreement, the
Administrator will:
5.1.1.1 retain copies of correspondence of the Company on files
which will be placed in storage on an annual basis;
5.1.1.2 retain original documents sent to it to retain for the
Company;
5.1.1.3 not maintain any of the Company's principal corporate
records or books of accounts within The Commonwealth of
Massachusetts; and
5.1.1.4 to the extent the Administrator receives copies of financial
statements, bank accounts or other information or documents
relating to the Company, that it will retain such
information and records;
5.2 subject only to clause 5.3 and 5.4 after six (6) years from the
termination of this Agreement, all records, contracts or materials
retained by the Administrator with regard to the Company will be
destroyed;
5.3 if the Company shall be wound-up, or shall be struck off the
Register of Companies in Bermuda, after twenty (20) years from such
event, the records, contracts or materials retained by the
Administrator with regard to the Company will be destroyed; and
5.4 if the Company shall be discontinued as a Bermuda company or shall
amalgamate with a company incorporated outside of Bermuda not
administered by the Administrator after
3
six (6) years from such event, the records, contracts or materials
retained by the Administrator with regard to the Company will be
destroyed.
5.5 the Administrator will not take any action or engage in any activity
that will cause the Company to either be subject to taxes in The
Commonwealth of Massachusetts or cause the Company to be engaged in
a "trade or business within the United States" as that term is
defined in the United States Internal Revenue Code of 1986, as
amended.
6 PERMITTED DISCLOSURES
6.1 The Company accepts and acknowledges the obligation of the
Administrator or the Officers to make filings with and disclosure to
the Bermuda Monetary Authority, the Registrar of Companies of
Bermuda or the Minister of Finance of Bermuda pursuant to the
provisions of Bermuda law, including the Companies Acts.
6.2 Save as aforesaid, none of the parties hereto shall, unless
compelled so to do by any court of competent jurisdiction, either
before or after the termination of this Agreement disclose to any
person (other than a director, officer, auditor, or accountant,
insurer or legal adviser of the party or legal adviser of an insurer
to the party) not authorised by the relevant party to receive the
same, any information relating to such party or to the affairs of
such party of which the party disclosing the same shall have become
possessed during the period of this Agreement and each party shall
use its best endeavours to prevent any such disclosures as
aforesaid.
7 ADMINISTRATOR ACTING FOR OTHER CLIENTS
The Company hereby acknowledges and accepts that the Administrator
provides corporate administrative services (including the services
of Officers) to a large number of companies, some of which may be in
competition with the Company.
8 LIABILITY OF ADMINISTRATOR AND INDEMNITY
8.1 In the absence of willful misfeasance, bad faith or gross negligence
on the part of the Administrator or any of the Beneficiaries, or
reckless disregard of its or their obligations and duties hereunder,
neither the Administrator nor any of the Beneficiaries shall be
liable to the Company, or to any other person in respect of anything
done or omitted to be done by the Administrator or the Beneficiaries
in carrying out their duties under this Agreement or their duties as
Officers of the Company. The Company covenants to indemnify and keep
indemnified the Administrator and each of the Beneficiaries against
any and all liabilities, costs, claims, demands, proceedings,
charges, actions, suits or expenses of whatsoever kind or character
that may be incurred or suffered by any of them howsoever arising
(other than by reason of willful misfeasance, bad faith or gross
negligence on the part of the Administrator or any of the
Beneficiaries, or reckless disregard of its or their obligations and
duties hereunder) in connection with the provision of the Services
or the performance of this Agreement.
8.2 Neither the Administrator nor any Beneficiaries shall be required to
take any legal action unless fully indemnified to its or their
reasonable satisfaction by the Company for all costs
4
and liabilities likely to be incurred or suffered by the
Administrator or the Beneficiaries as the case may be and if the
Company requires the Administrator or any such Beneficiary in any
capacity to take any action which in the opinion of the
Administrator or any such Beneficiaries might make the Administrator
or any such Beneficiaries as agent liable for the payment of money
or liable in any other way, the Administrator or any such
Beneficiaries shall be and be kept indemnified by the Company in any
reasonable amount and form satisfactory to it as a prerequisite to
take such action; provided, however, that, in no event, shall the
Administrator or any of the Beneficiaries be entitled to
indemnification by the Company if any such action arises from the
willful misfeasance, bad faith or gross negligence on the part of
the Administrator or any of the Beneficiaries, or reckless disregard
of its or their obligations and duties hereunder.
8.3 The indemnities given by this Agreement shall cover all reasonable
costs and expenses payable by the Administrator and any of the
Beneficiaries or any of them in connection with any claims.
8.4 To the extent that the Administrator or any of the Beneficiaries are
entitled to claim an indemnity pursuant to this Agreement in respect
of amounts paid or discharged by the Administrator or any of the
Beneficiaries, these indemnities shall take effect as an obligation
of the Company to reimburse the person making such payment or
effecting such discharge.
8.5 The parties acknowledge that the Group owes no duties under this
Agreement to and shall not be liable to any party hereto or to any
other person in connection with the obligations of any party to or
the performance by any party of this Agreement.
8.6 The indemnification provided by this Agreement shall not be deemed
exclusive of any other rights to which those seeking indemnification
may be entitled under any statute, agreement, the Bye-laws of the
Company or otherwise, and shall continue after the termination of
this Agreement.
9 TERMINATION
9.1 This Agreement may be terminated by the Company or the Administrator
giving not less than three (3) months written notice (or such
shorter notice as the receiving party may agree in writing to
accept) provided that this Agreement may be terminated forthwith by
notice in writing:
9.1.1 given by the party not in breach in the event of failure to
rectify a breach within thirty (30) days of the party in breach
receiving written notice of the breach; or
9.1.2 given by either party in the event that a winding-up (or the
equivalent in another jurisdiction) of the Administrator or the
Company has commenced or either of the parties has discontinued
under the Companies Acts or that a receiver is appointed over any
assets of either party.
9.2 Termination shall be without prejudice to any rights or liabilities
of either party hereto arising prior to or in respect of any act or
omission occurring prior to termination.
5
9.3 In the event of termination in accordance with the provisions of
this Agreement, the amount of the basic minimum annual charge
referred to in Clause 3 hereof shall be pro-rated to the date of
termination (after taking into account such additional amounts, if
any, as the time spent and the responsibility undertaken during the
relevant period immediately prior to termination justify).
9.4 In the event of termination in accordance with the provisions of
this Agreement, the Company and the Administrator shall procure that
all such acts are done as may be necessary to give effect to such
termination and the Company shall secure and the Administrator
shall, subject to payment of all amounts due to it hereunder,
co-operate with the Company as it locates and appoints a substitute
administrator and substitute Officers as circumstances may require.
9.5 In the event of termination in accordance with the provisions of
this Agreement, but only after payment of all amounts due to it
under the terms of this Agreement, the Administrator shall hand over
to the Company or as it may direct all books of account,
correspondence and records relating to the affairs of the Company
which are the property of the Company and which are in its
possession.
9.6 A copy of the termination notice shall be sent to the Principal by
the party terminating this Agreement
10 SETTLEMENT OF DISPUTES
10.1 Any dispute arising out of or in connection with this Agreement,
including any question regarding its existence, validity or
termination, shall be referred to and finally resolved by
arbitration in accordance with either the Arbitration Xxx 0000 or
the Bermuda International Conciliation and Arbitration Xxx 0000 as
amended, extended or re-enacted from time to time whichever is
appropriate and subject only to clause 10.2 and provided that:
10.1.1 There shall be one arbitrator whose appointment shall be agreed
between the parties within seven days of the service of an
arbitration notice;
10.1.2 In the absence of agreement such arbitrator will be appointed by
the chairman for the time being of the Bermuda International
Business Association;
10.1.3 Within fourteen (14) days of the appointment of an arbitrator
the claimant will serve its points of claim upon the respondent;
10.1.4 Within fourteen (14) days thereafter the respondent shall serve
its defence (if any);
10.1.5 Within seven days thereafter there shall be a preliminary
hearing held by the arbitrator to settle any further directions
for hearing and the arbitrator shall at that time appoint a
hearing date;
10.1.6 The arbitration shall be held in Bermuda and the governing law
and procedures shall be those of Bermuda;
6
10.1.7 The award of the arbitrator shall be final and binding upon the
parties;
10.1.8 The arbitrator shall publish a written reasoned award within
fourteen days of the substantive arbitration hearing; and
10.1.9 A copy of each arbitration document shall be sent to the
Principal by the party which prepared the document.
10.2 The Administrator may take proceedings in any jurisdiction against
the Company for the recovery of monies due to it.
11 MISCELLANEOUS
11.1 This Agreement represents the entire understanding between the
parties and supersedes all prior agreements and undertakings whether
written or oral concerning the subject matter of this Agreement.
This Agreement may only be amended by agreement in writing signed by
the parties hereto.
11.2 Any notice required to be given hereunder shall be in writing and
may be served on any party by electronic mail, facsimile or by being
left at or sent by registered post to the registered office for the
time being of the Administrator and to the registered office for the
time being of the Company and any notice given by post shall be
deemed to have been served at the expiration of five working days of
the recipient after the date upon the registration receipt provided
by the postal authority (and in proving such service it shall be
sufficient to prove that the envelope containing the notice was
properly addressed and sent by registered post) and in the case of
electronic mail and facsimile shall be deemed to have been served
twelve working hours of the recipient after despatch.
Contemporaneously with such service, a copy of the document shall be
transmitted by facsimile to the following address (or to such other
address as shall be notified in writing by one party to the other
for the purpose):
(a) If to the Company:
Xxxxxxxx Xxxx Van Otterloo & Co. LLC
00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
X.X.X.
Fax: (000) 000 0000
(b) If to the Administrator:
Xxxxxxx Corporate Services (Bermuda) Ltd.
Canon's Court
00 Xxxxxxxx Xxxxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx: Managing Director
7
Fax: (000) 000 0000.
11.3 This Agreement shall be governed by and construed in accordance with
Bermuda law excluding any conflict of law rules that would refer the
matter to be decided to the laws of another jurisdiction.
11.4 This Agreement shall be binding upon and enure for benefit of the
successors of the parties but shall not be assignable.
11.5 Nothing in this Agreement shall be construed or have effect as
constituting any relationship of employer and employee between the
Beneficiaries and the Company.
11.6 The invalidity or unenforceability of any provision or part of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, and this
Agreement shall continue in full force and effect except for any
such invalid or unenforceable provision, which shall be deemed
replaced by such valid or enforceable provision the content of which
is as close as is permissible to that of the invalid or
unenforceable provision.
11.7 This Agreement may be executed in counterparts and it shall not be
necessary that each counterpart be signed by each party hereto so
long as each party shall have executed and delivered a counterpart.
11.8 The failure of either party to this Agreement to object to or to
take affirmative action with respect to any conduct of either party
which is in violation of the terms of this Agreement shall not be
construed as a waiver of the violation or breach, or of any future
violation, breach or wrongful conduct.
11.9 This Agreement shall be executed outside The Commonwealth of
Massachusetts.
IN WITNESS WHEREOF the Company and the Administrator have executed this
Agreement as of the day and the year first above written.
SIGNED BY ________________________
Duly authorised on behalf of
GMO ALTERNATIVE ASSET SPC LTD.
8
SIGNED BY XXXXXXX XXXXXXXX _______________________
Duly authorised on behalf
of XXXXXXX CORPORATE SERVICES (BERMUDA) LTD.
9
SCHEDULE 1
PRINCIPAL
Name(s) Address(es) and Facsimile Number(s)
Xxxx Xxxxxx Xxxxxxxx Xxxx, Van Otterloo & Co LLC
00 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
X.X.X.
Tel: (000) 000 0000
Fax: (000) 000 0000
10
SCHEDULE 2
SERVICES MADE AVAILABLE BY THE ADMINISTRATOR
(i) The provision of summary information with respect to changes in Bermuda
law materially affecting the statutory obligations of the Company.
(ii) Provision of a Director acceptable to the Company and ordinarily resident
in Bermuda, provided that such number of Directors shall not represent a
majority of the Board or all of the Directors of the Company.
(iii) Provision of an individual acceptable to the Company and ordinarily
resident in Bermuda to act as Company Secretary and the Administrator
acting as an Assistant Company Secretary.
(iv) Provision of the Registered Office of the Company.
(v) Maintaining the Share Register, including receipt and processing of
purchase and redemption requests in accordance with the Company's
Bye-Laws, and the Register of Directors and Officers of the Company.
(vi) Keeping the Company's Minute Book.
(vii) Attending meetings, taking, drafting, preparing and circulating minutes of
meetings of the Company and its Board, unless otherwise requested in
writing by the Company.
(viii)Provision of board room and other support facilities for meetings held in
Bermuda.
(ix) The filing of statutory returns by the Company and documents required
under the Companies Acts in Bermuda, provided always that the requisite
information to enable the Administrator to do so is available and the
Administrator has received all relevant payments.
(x) Liaising with the auditors of the Company generally and in respect of the
preparation of annual and semi-annual financial statements.
(xi) Maintaining copies of the quarterly accounts and of any audited financial
statements of the Company required to be kept in Bermuda.
(xii) Handling the day to day affairs of the Company in Bermuda, (other than
taxation and accounting affairs) including signing or countersigning
cheques by any Signatory, dealing with correspondence, faxes and telephone
calls.
(xiii)Liaising with those authorised to represent the Company and its
shareholders and with the Company's bankers, managers (where applicable)
and accountants.
(xiv) Soliciting the advice of the Group on legal matters connected with the
Company.
(xv) Such other services as may be agreed in writing between the parties.
11
SCHEDULE 3
DOCUMENTATION TO BE PROVIDED BY THE COMPANY
(i) quarterly management accounts in respect of the Company, duly certified by
an accountant or auditor or director or officer of the Company pursuant to
the requirements of Section 83 of the Companies Acts, to be supplied
within thirty (30) days of the end of each financial quarter; and
(ii) the financial statements of the Company in respect of each financial year
prepared in accordance with the requirements of section 84 of the
Companies Acts together with the auditors' report in respect thereof, to
be supplied not less than fourteen (14) days before the date of the
Company's annual general meeting or no later than six (6) months after the
end of the financial year whichever shall be the earlier date (provided
that if the audit is waived in accordance with the requirements of the
Companies Acts, management accounts for the Company shall be supplied,
duly certified by an accountant or director or officer of the Company not
less than fourteen (14) days before the date of the Company's annual
general meeting or no later than six (6) months after the end of the
financial year whichever shall be the earlier date); and
(iii) copies of the minutes of all meetings of the members of the Company,
whether general meetings or class meetings and minutes of directors'
meetings.
12
