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Exhibit (k)(1)
MANAGEMENT AND ADMINISTRATION AGREEMENT
BY AND BETWEEN
XXXXXXXXXXX & CO., INC.
AND
TROON PARTNERS, X.X.
Xxxxxxxxxxx & Co., Inc. ("Opco") and Troon Partners, L.P. (the
"Partnership") hereby agree as follows:
THIS MANAGEMENT AND ADMINISTRATION AGREEMENT (the "Agreement")
is made as of this 19th day of December, 1996, by and between Opco and the
Partnership.
WHEREAS, Opco is in the business of providing, and the
Partnership wishes Opco to provide, certain management and administrative
services;
NOW THEREFORE, in consideration of the terms and conditions
herein contained, the parties agree as follows:
1. Appointment of Opco.
(a) The Partnership hereby appoints, and Opco
hereby accepts appointment, to serve as the Partnership's management company.
In such capacity, Opco agrees to provide certain management (but not investment
management) and administrative services to the Partnership. These services
shall include:
(i) the provision of office space, telephone and
utilities;
(ii) the provision of administrative and
secretarial, clerical and other personnel as
necessary to provide the services required to
be provided under this Agreement;
(iii) the general supervision of the entities which
are retained by the Partnership to provide
administrative services and custody services
to the Partnership;
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(iv) the handling of investor inquiries regarding
the Partnership and providing them with
information concerning their investment in
the Partnership and capital account balances;
(v) monitoring relations and communications
between investors and the Partnership;
(vi) overseeing the drafting and updating of
disclosure documents relating to the
Partnership and assisting in the distribution
of all offering materials to investors;
(vii) maintaining and updating investor
information, such as change of address and
employment;
(viii) overseeing the distribution and acceptance of
investor subscription documents and
confirming the receipt of such documents and
funds;
(ix) overseeing the provision of investment advice
to the Partnership by Troon Management,
L.L.C., the manager of the Partnership (or
any successor adviser), and monitoring
compliance by the manager with applicable
investment policies and restrictions of the
Partnership;
(x) coordinating and organizing meetings of the
Partnership's general partners (the "General
Partners");
(xi) preparing materials and reports for use in
connection with meetings of the General
Partners; and
(xii) reviewing and approving all regulatory
filings required under applicable law.
(b) Notwithstanding the appointment of Opco to
provide services hereunder, the Individual General Partners of the Partnership
(the "IGPs") shall remain responsible for supervising and controlling the
management, business and affairs of the Partnership.
2. Opco Fee; Reimbursement of Expenses.
(a) In consideration for the provision by Opco of
its services hereunder, the Partnership will pay Opco a monthly management fee
of 0.08333% (1% on annualized basis) of the Partnership's "net assets" (the
"Opco Fee"). "Net assets" shall equal the total value of all assets of the
Partnership, less an amount equal to all accrued debts, liabilities, and
obligations of the Partnership calculated before giving effect to any
repurchase of interests.
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(b) The Opco Fee will be computed based on the
net assets of the Partnership as of the start of business on the first business
day of each month, after adjustment for any subscriptions effective on such
date, and will be due and payable in arrears within five days after the end of
such month. The Opco Fee will be charged in each fiscal period to the capital
accounts of the Partnership's limited partners in proportion to their capital
accounts at the beginning of such fiscal period. In the event that the Opco
Fee is payable in respect of a partial month, such fee will be appropriately
pro-rated.
(c) Opco is responsible for all costs and
expenses associated with the provision of its services hereunder. The
Partnership shall pay all other expenses associated with the conduct of its
business.
(d) The Partnership understands that Opco may pay
a portion of the fees received by it hereunder to Xxxx Asset Management
Corporation.
3. Liability. Opco will not be liable for any
error of judgment or mistake of law or for any loss suffered by the Partnership
or its partners in connection with the performance of its duties under this
Agreement, except a loss (as to which it will be liable and will indemnify and
hold harmless the Partnership) resulting from willful misfeasance, bad faith or
gross negligence on Opco's part (or on the part of an officer or employee of
Opco) in the performance of its duties hereunder or reckless disregard by it of
its duties under this Agreement.
4. Effective Date and Termination. This Agreement
shall become effective as of the date first noted above, and shall remain in
effect for an initial term of one year from the date of its effectiveness.
This Agreement may be continued in effect from year to year thereafter provided
that each such continuance is approved by the IGPs, including the vote of a
majority of the IGPs who are not "interested persons" of the Partnership, as
defined by the Investment Company Act of 1940 and the rules thereunder (the
"1940 Act"). This Agreement may be terminated by Opco, by the IGPs or by vote
of a majority of the outstanding voting securities of the Partnership at any
time, in each case upon not less than 60 days' prior written notice. This
Agreement shall also terminate automatically in the event of its "assignment,"
as such term is defined by the 1940 Act.
5. Entire Agreement. This Agreement embodies the
entire understanding of the parties. This Agreement cannot be altered,
amended, supplemented, or abridged, or any provisions waived except by written
agreement of the parties.
6. Choice of Law. This Agreement shall be construed
and enforced in accordance with the laws of the State of New York and the 1940
Act. In the event the laws of New York conflict with the 1940 Act, the
applicable provisions of the 1940 Act shall control.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
XXXXXXXXXXX & CO., INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
TROON PARTNERS, L.P.
By: Troon Management, L.L.C.
General Partner/Manager
By: Xxxxxxxxxxx & Co., Inc.
Managing Member
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
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