EXHIBIT 9 (C)
THE XXXXXX SQUARE STRATEGIC FIXED-INCOME FUND
FUND SECRETARIAL SERVICES AGREEMENT
THIS FUND SECRETARIAL SERVICES AGREEMENT is made the 26th day of January,
1998, between The Xxxxxx Square Strategic Fixed-Income 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's parent, Wilmington Trust Company, serves as investment
advisor to each of the two currently existing Portfolios of the Fund pursuant to
separate investment advisory services agreements dated April 1, 1991 and
November 1, 1993;
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;
2
(ii) preparation (or cause the preparation), and arranging for the
filing, printing and distribution, as necessary, of
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;
3
(e) Filing (including XXXXX conversion, assembly and transmission),
typesetting and printing, and mailing or other dissemination, as
necessary, of prospectuses, statements of 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.
4
7. COMPENSATION. For the performance of its obligations under this Agreement,
RSMC shall receive compensation from Wilmington Trust Company, and not
from the Fund.
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.
5
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 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.
6
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 STRATEGIC
FIXED-INCOME FUND
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx, President
XXXXXX SQUARE MANAGEMENT
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxxx, President
7
