Exhibit (k)(1)
ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT (the "Agreement") is made as of this
26th day of April, 2000, by and between CIBC World Markets Corp. ("CIBC WM") and
Xxxxxxxxx Fund, L.L.C. (the "Fund").
WHEREAS, CIBC WM is in the business of providing administrative services to
investment partnerships and limited liability companies; and
WHEREAS, the Fund wishes to retain CIBC WM to provide certain
administrative services;
NOW THEREFORE, in consideration of the terms and conditions herein
contained, the parties agree as follows:
1. Appointment of CIBC WM.
(a) The Fund hereby retains CIBC WM to provide and CIBC WM hereby
agrees to provide certain administrative services to the Fund. 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 that are retained by the
Fund to provide administrative services and custody services to
the Fund;
(iv) the handling of investor inquiries regarding the Fund and
providing investors with information concerning their investment
in the Fund and capital account balances;
(v) monitoring relations and communications between investors and the
Fund;
(vi) assisting in the drafting and updating of disclosure documents
relating to the Fund and assisting in the preparation of offering
materials;
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(vii) maintaining and updating investor information, such as change of
address and employment;
(viii) assisting in the preparation and mailing of investor
subscription documents and confirming the receipt of such
documents and investor funds;
(ix) assisting in the preparation of regulatory filings with the
Securities and Exchange Commission, state securities regulators
and other Federal and state regulatory authorities;
(x) preparing reports to and other informational materials for
members and assisting in the preparation of proxy statements and
other member communications;
(xi) monitoring compliance with regulatory requirements and with the
Fund's investment objective, policies and restrictions as
established by the Board of Managers of the Fund (the "Board");
(xii) reviewing accounting records and financial reports of the Fund,
assisting with the preparation of the financial reports of the
Fund and acting as liaison with the Fund's accounting agent and
independent auditors;
(xiii) assisting in preparation and filing of tax returns;
(xiv) coordinating and organizing meetings of the Board and meetings
of the members of the Fund, in each case when called by such
persons;
(xv) preparing materials and reports for use in connection with
meetings of the Board;
(xvi) maintaining and preserving those books and records of the Fund
not maintained by CIBC Xxxxxxxxxxx Advisers, L.L.C., the Fund's
investment adviser (the "Adviser") or the Fund's accounting
agent or custodian;
(xvii) reviewing and arranging for payment of the expenses of the
Fund;
(xviii) assisting the Fund in conducting offers to members of the Fund
to repurchase member interests; and
(xix) reviewing and approving all regulatory filings of the Fund
required under applicable law.
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(b) Notwithstanding the appointment of CIBC WM to provide
administrative services hereunder, the Board shall remain
responsible for supervising and controlling the management,
business and affairs of the Fund.
2. CIBC WM Fee; Expenses.
(a) In consideration for the provision by CIBC WM of its services
hereunder, the Fund will pay CIBC WM a monthly management fee of
0.08333% (1% on annualized basis) of the Fund's "net assets" (the
"CIBC WM Fee"). "Net assets" shall equal the total value of all
assets of the Fund, less an amount equal to all accrued debts,
liabilities, and obligations of the Fund calculated before giving
effect to any repurchases of interests.
(b) The CIBC WM Fee will be computed based on the net assets of the
Fund 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
business days after the end of such month. In the event that the
CIBC WM Fee is payable in respect of a partial month, such fee
will be appropriately pro-rated.
(c) CIBC WM is responsible for all costs and expenses associated with
the provision of its services hereunder. The Fund shall pay all
other expenses associated with the conduct of its business.
3. Liability. CIBC WM will not be liable for any error of judgment or
mistake of law or for any loss suffered by the Fund, the Managers serving on the
Board ("Managers") or the Fund's members 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 Fund) resulting from willful
misfeasance, bad faith or gross negligence on CIBC WM's part (or on the part of
an officer or employee of CIBC WM) 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 two years from the date of its effectiveness. This Agreement may
be continued in effect from year to year after its initial term provided that
such continuance is approved annually by the Board, including the vote of a
majority of the Managers who are not "interested persons" of the Fund, as
defined by the Investment Company Act of 1940 and the rules thereunder (the
"1940 Act"). This Agreement may be terminated by CIBC WM, by the Board or by
vote of a majority of the outstanding voting securities of the Fund 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.
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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.
CIBC WORLD MARKETS CORP.
By: /s/
--------------------------------
Name:
Title:
XXXXXXXXX FUND, L.L.C.
By: /s/
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Name: Xxxxxx X. Xxxxxx
Title: Principal Manager
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