Exhibit (k)
ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS ADMINISTRATION AND ACCOUNTING AGREEMENT is made and entered into as of
August 23, 2000, by and between X.X. Xxxxx & Co. (the "Administrator") and
Excelsior Hedge Fund of Funds I, LLC ("Excelsior").
WITNESSETH:
WHEREAS, Excelsior is registered as a closed-end, non-diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, Excelsior desires to retain the Administrator to provide certain
administrative and accounting services to Excelsior and the Administrator
desires to provide such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby the parties hereto
agree as follows:
1. Definitions. As used in this Agreement:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(c) "AUTHORIZED PERSON" means any person duly authorized by Excelsior's
Board of Managers to give Oral Instructions and Written Instructions on behalf
of Excelsior and listed on the Authorized Persons Appendix attached hereto and
made a part hereof or any amendment thereto as may be received by the
Administrator. An Authorized Person's scope of authority may be limited by
Excelsior by setting forth such limitation in the Authorized Persons Appendix.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "BOARD OF MANAGERS" AND "MEMBERS" shall have the same meanings as set
forth in Excelsior's limited liability company agreement.
(f) "ORAL INSTRUCTIONS" mean oral instructions received by the
Administrator from an Authorized Person or from a person reasonably believed by
the Administrator to be an Authorized Person.
(g) "SEC" means the Securities and Exchange Commission.
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(h) "SECURITIES LAWS" means the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(i) "WRITTEN INSTRUCTIONS" mean written instructions signed by an
Authorized Person and received by the Administrator. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or facsimile sending
device.
2. APPOINTMENT. Excelsior hereby appoints the Administrator to provide
administrative and accounting services, in accordance with the terms set forth
in this Agreement. The Administrator accepts such appointment and agrees to
furnish such services.
3. COMPLIANCE WITH RULES AND REGULATIONS. The Administrator undertakes to comply
with all applicable requirements of the Securities Laws, and any laws, rules and
regulations of governmental authorities having jurisdiction with respect to the
duties to be performed by the Administrator hereunder. Except as specifically
set forth herein, the Administrator assumes no responsibility for such
compliance by Excelsior.
4. RECORDS; VISITS.
(a) The books and records pertaining to Excelsior which are in the
possession or under the control of the Administrator shall be the property of
Excelsior. Such books and records shall be prepared and maintained as required
by the 1940 Act and other applicable securities laws, rules and regulations.
Excelsior and Authorized Persons shall have access to such books and records at
all times during the Administrator's normal business hours. Upon the reasonable
request of Excelsior, copies of any such books and records shall be provided by
the Administrator to Excelsior or to an Authorized Person, at Excelsior's
expense.
(b) The Administrator shall keep the following records:
(i) all books and records with respect to Excelsior's books of
account;
(ii) records of Excelsior's securities transactions; and
(iii) all other books and records as Excelsior is required to maintain
pursuant to Rule 31a-1 of the 1940 Act in connection with the services
provided by the Administrator hereunder.
5. DESCRIPTION OF SERVICES. The Administrator will perform the following
administration and accounting services:
(a) Establish, periodically review and update Excelsior's accounting
systems and internal controls;
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(b) Evaluate accounting and recordkeeping procedures and practices of
investment managers being considered for investment by Excelsior;
(c) Monitor accounting and recordkeeping procedures and practices of
investment managers retained by Excelsior;
(d) Consult with investment managers to obtain accurate and timely
performance evaluations on a monthly basis;
(e) Prepare monthly performance summary for Excelsior;
(f) Prepare detailed quarterly reports for members of Excelsior;
(g) Calculate on a monthly basis the interest of each member of Excelsior;
(h) Provide Excelsior with an estimate of tax gains and losses and other
allocations with respect to each member of Excelsior, as of December 15 of each
year and at such other times as may be requested by Excelsior;
(i) Consult with the auditors designated by Excelsior to establish
procedures for the annual audit of Excelsior and prepare such reports and other
information as may be requested by such auditors;
(j) Consult with attorneys retained by Excelsior to ensure compliance with
Excelsior's limited liability company agreement;
(k) Prepare and file Excelsior's Annual and Semi-Annual Reports with the
SEC on Form N-SAR via XXXXX;
(l) Prepare for execution and file Excelsior's Federal Form 1065 and state
tax returns and K-1 and supplementary schedules;
(m) Maintain the register of Members of Excelsior and enter on such
register all issues, transfers and repurchases of interests in Excelsior;
(n) Arrange for the calculation of the issue and repurchase prices of
interests in Excelsior in accordance with Excelsior's limited liability company
agreement and confidential memorandum;
(o) Allocate income, expenses, gains and losses to individual Members'
capital accounts in accordance with applicable tax laws and with Excelsior's
limited liability company agreement;
(p) Prepare annual Form K-1's for Members in
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accordance with applicable tax regulations; and
(q) Retain in a safe place Share Registers and transfer forms for a period
of at least six years from the time of execution;
6. STANDARD OF CARE. The Administrator shall be obligated to exercise reasonable
care and diligence in the performance of its duties hereunder, to act in good
faith and to use its best efforts in performing the services provided for under
this Agreement. The Administrator shall be liable for any damages arising out of
the Administrator's failure to perform its duties under this Agreement to the
extent such damages arise out of the Administrator's willful misfeasance, bad
faith, negligence or reckless disregard of such duties.
7. COMPENSATION.
(a) Excelsior shall pay the Administrator a fee on a quarterly basis within
ten days after the end of each calendar quarter, in an amount equal to the
greater of (i) ten (10) basis points of the net assets under management of
Excelsior as of the first day of such calendar quarter, or (ii) $3,000. The fee
payable pursuant to this Section 7(a) shall not exceed $150,000 with respect to
any fiscal year of Excelsior.
(b) For purposes of this Section 7, assets under management as of the first
day of any calendar quarter shall not include any assets reserved for
distribution to members or payment to the investment adviser of Excelsior. In
addition, the maximum quarterly administrative fee of $37,500 shall be adjusted
on each anniversary of this Agreement based on the increase or decrease in the
"Revised Consumers Price Index - (1967= 100)" for the immediately preceding
calendar year, as published by the Bureau of Labor Statistics of the United
States Department of Labor.
8. CONFIDENTIAL INFORMATION. The Administrator will have access to and become
acquainted with records of and information relating to Excelsior, its Members
and affiliates (collectively, "Confidential Information"). Neither the
Administrator nor any of its officers, employees or agents shall disclose any of
the Confidential Information (including any client list or other confidential
information relating to the businesses of Excelsior or its affiliates), directly
or indirectly, or use them in any way, either during the term of this Agreement
or at any time thereafter, except as required in the course of performing duties
for Excelsior under this Agreement and unless the disclosure of any such
Confidential Information is otherwise consented to, in writing, by Excelsior. As
used in this Section 8 the term "Confidential Information" does not include
information that (a) becomes or has been generally available to the public other
than as a result of disclosure by the Administrator; (b) was available to the
Administrator on a nonconfidential basis prior to its disclosure by Excelsior or
any of its affiliates; or (c) is independently developed or becomes available to
the Administrator on a nonconfidential basis from a source other than Excelsior
or its affiliates.
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9. LIAISON WITH ACCOUNTANTS. The Administrator shall act as liaison with
Excelsior's independent public accountants and shall provide account analyses,
fiscal year summaries, and other audit-related schedules. The Administrator
shall take all reasonable action in the performance of its duties under this
Agreement to assure that the necessary information is made available to such
auditors and accountants in a timely fashion for the expression of their
opinion, as required by Excelsior.
10. DISASTER RECOVERY. In the event of equipment failures, the Administrator
shall, at no additional expense to Excelsior, take reasonable steps to minimize
service interruptions. The Administrator shall have no liability with respect to
the loss of data or service interruptions caused by equipment failure, provided
such loss or interruption is not caused by the Administrator's own willful
misfeasance, bad faith, gross negligence or reckless disregard of its duties or
obligations under this Agreement.
11. OTHER SERVICES. Other services rendered at the option or request Excelsior
that are not outlined in Section 5 above, shall be billed at an hourly rate of
$100.
12. TERM. This Agreement shall continue until terminated by Excelsior or the
Administrator on sixty days' prior written notice to the other party.
13. NOTICES. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable, telex or
facsimile sending device. If notice is sent by confirming telegram, cable, telex
or facsimile sending device, it shall be deemed to have been given immediately.
If notice is sent by first-class mail, it shall be deemed to have been given
three days after it has been mailed. If notice is sent by messenger, it shall be
deemed to have been given on the day it is delivered. Notices shall be addressed
(a) if to the Administrator, at X.X. Xxxxx & Co., One Praesideo Place, Suite
200, 0000 Xxxx Xxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxx 00000; (b) if to Excelsior, at
c/o NCT Opportunities, Inc., U.S. Trust Center, 000 Xxxxx Xxx Xxxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn: Xxxxxxx X. Xxxxxxxxxx; or (c) if to
neither of the foregoing, at such other address as shall have been provided by
like notice to the sender of any such notice or other communication by the other
party.
14. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by written amendment, signed by the party against whom enforcement of such
change or waiver is sought.
15. DELEGATION; ASSIGNMENT. This Agreement and the rights and duties of the
parties herein may not be assigned or delegated by any party without the written
consent of each party.
16. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
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17. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
18. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided that the parties
may embody in one or more separate documents their agreement, if any, with
respect to delegated duties and Oral Instructions.
(b) CAPTIONS. 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.
(c) GOVERNING LAW. This Agreement shall be deemed to be a contract made in
North Carolina and governed by North Carolina law, without regard to principles
of conflicts of law.
(d) PARTIAL INVALIDITY. 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.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
(f) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
EXCELSIOR HEDGE FUND OF FUNDS I, LLC
By: /s/
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Title: Principal Manager
X.X. XXXXX & CO.
By: /s/
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Title: President
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