ADMINISTRATION AGREEMENT FOR A T FUND OF FUNDS LTD.
Exhibit
(k)(4)
ADMINISTRATION
AGREEMENT
FOR
A
T FUND OF FUNDS LTD.
This
ADMINISTRATION AGREEMENT
is made as of this 23rd day of May, 2007 (this “Agreement”), between
Allegiance Investment Management, LLC, a Delaware limited liability company
doing business as Allegiance Capital (the “Administrator”), and A T Fund
of Funds Ltd., an exempted company organized in and under the laws of the
Cayman
Islands (the “Fund”).
WHEREAS,
the Fund is a Cayman Islands exempted company that is not registered under
the
Investment Company Act of 1940, as amended, and desires to retain the
Administrator to provide administrative and investor services to the Fund
on the
terms and subject set forth herein.
NOW
THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed as follows:
1.
Appointment. The
Fund hereby appoints the Administrator to provide administrative and investor
services with respect to the Fund, and the Administrator accepts such
appointment and agrees to furnish the services set forth herein, in accordance
with the provisions hereof and subject to the supervision of the Fund and
the
supervision of the Board of Directors of the Fund and the ultimate supervision
of the Board of Trustees of A T Fund of Funds TEI (the “Trust”), a Delaware
statutory trust (collectively, the “Board of Directors” and any of them,
a “Director”), and any policies established by the Board of Directors or
any committee thereof.
2.
Administrative
Services. Subject to the supervision of the Fund and the
oversight of the Board of Directors, the Administrator shall act as the primary
administrator of the Fund and shall perform, or cause to be performed, agreed
upon services necessary in connection with the day-to-day administration
of the
Fund (the “Administrative Services”). Without limiting the
generality of the foregoing, the Administrative Services shall
include:
(a) Records. Registrar
and transfer agent functions, record keeping and clerical services.
(b) Compliance. Developing
and monitoring compliance procedures for the Fund concerning, among other
matters, adherence of the Fund to its investment objectives, policies,
restrictions, tax matters and applicable laws and regulations, including
monitoring federal, state and other applicable regulatory filings and notices
made by other agents of the Fund.
(c) Tax
Services. Tax and treasury services, including preparing and
filing various reports (including tax returns) or other documents required
by
federal, state and other applicable laws and regulations other than those
required to be filed by the Fund’s custodian or transfer agent.
(d) Legal
and Accounting. Management of legal and accounting
services.
(e) Financial
Reports. Financial reporting and assisting in the preparation of
financial statements.
(f) Intentionally
Reserved.
(g) Meeting
Coordination. Assisting in the preparation of all agendas,
notices and minutes for meetings of the Board of Directors or shareholders
of
the Fund; assisting in the preparation of all resolutions to be voted upon
by
the Board of Directors; assisting in the preparation of supporting information
for such meetings with regard to the duties of the Administrator under this
Agreement, and collection and distribution of supporting information for
such
meetings with respect to the duties performed by other persons who provide
services to the Fund.
(h) Investor
Services. Providing or arranging administrative services to the
shareholders of the Fund, including:
(i) Maintaining
a list of shareholders and generally performing all actions related to the
issuance, repurchase, redemption and transfer of shares of the Fund
(“Shares”), if any;
(ii) Reviewing
and, subject to approval by the Fund, accepting subscriptions and payment
for
Shares.
(iii) Computing
and disseminating the net asset value of the Trust in accordance with the
description of valuation policies and procedures contained the Trust’s private
placement memorandum (the “Memorandum”) which forms a part of the Trust’s
registration statement filed with the United States Securities and Exchange
Commission under the 1940 Act, as that registration statement is amended
from
time to time, subject to supervision of the Fund and the oversight of the
Board
of Directors.
(iv) Performing
all acts related to the private placement of Shares to the Trust, the sole
investor in the Fund, in accordance with applicable law, and all acts related
to
the redemption or the repurchase of Shares.
(v) Supervising
the completion of, and furnishing, annual financial statements of the Fund,
as
well as monthly reports regarding the Fund’s performance and net asset value, to
the Trust, the sole shareholder of the Fund.
(i) Supervision. Supervising
third parties retained by the Administrator, if any, to perform any or all
of
the Administrative Services (“Subadministrators”).
3.
Intentionally
Reserved.
4.
Duty
of Care.
(a) Compliance. The
Administrator shall provide the services under this Agreement in accordance
with
the Fund’s Memorandum and the Articles of Association. The
Administrator further agrees that it shall conform with all applicable laws,
rules and regulations, and consult with legal counsel to and the independent
public accountant for the Fund, as necessary and appropriate, on whose advice
the Administrator shall be entitled to rely.
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(b) Representations. The
Administrator represents and warrants that it (i) is duly registered with
the
proper regulatory organizations as applicable, and (ii) has procedures in
place
to comply with all requirements of all applicable laws, rules and
regulations.
(c) Best
Judgment. The Administrator shall use its best judgment and
efforts in providing the advice and services as contemplated by this
Agreement.
5.
Sub-Agents.
(a) Sub-Agents. The
Administrator may, from time to time, employ or associate itself with such
person or persons as the Administrator may believe to be particularly suited
to
assist it in performing services under this Agreement, including without
limitation, Subadministrators, transfer agents and broker-dealers (each,
a
“Sub-Agent”). Such Sub-Agents may include affiliates of the
Administrator and/or the Fund and officers and employees who are employed
by the
Administrator and/or the Fund.
(b) Representations. The
Administrator shall obtain appropriate representations and warranties from
each
Sub-Agents to the effect that such person or entity (i) is duly registered
with
the proper regulatory organizations as applicable, and (ii) has procedures
in
place to comply with all applicable requirements of all applicable laws,
rules
and regulations.
(c) Full
Responsibility. Nothing set forth in any agreement with any
Sub-Agents shall relieve the Administrator of any of its responsibilities
or
obligations under this Agreement.
6.
Fund
Information.
(a) Information. The
Fund shall provide the Administrator with copies of the Memorandum (and any
amendments thereto) promptly upon receiving copies thereof from the
Fund. The Fund shall, from time to time, furnish or otherwise make
available to the Administrator such financial reports, proxy statements,
policies and procedures and other information relating to the business and
affairs of the Trust or the Fund as the Administrator may reasonably require
in
order to discharge its duties and obligations hereunder.
(b) Notification. The
Fund shall notify the Administrator as soon as possible of any matter materially
affecting the performance by the Administrator of its services under this
Agreement. The Fund shall notify the Administrator immediately in
writing upon becoming aware: (i) of any request by any regulatory authority
for
amendments to the Memorandum then in effect or for additional information;
(ii)
of the occurrence of any event which makes untrue any statement of a material
fact made in the Memorandum then in effect or which requires the making of
a
change in such Memorandum in order to make the statements therein not materially
misleading; and (iii) of any material amendments to the Memorandum which
may
from time to time be filed with any regulatory authority.
7.
Expenses.
(a) Administrator
Expenses. During the term of this Agreement, the Administrator
shall pay all expenses incurred by it, its staff and their activities, in
connection with its provision of the services to be performed by it under
this
Agreement, including the costs relating to
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maintaining such staff and employing or retaining such personnel and consulting with such other persons (including its affiliates) as may be necessary to provide the services to be provided hereunder.
(b) Fund
Expenses. The Administrator shall be responsible for, and hereby
assumes and agrees to pay, all expenses of the Fund (i.e., total
operating expenses of the Fund), including, without limitation all fees and
expenses related to: the formation and organization of the Fund and any special
purpose vehicles; initial and on-going registration requirements of the Fund;
day-to-day operations, administration, record keeping and compliance of the
Fund; non-investment related interest expense; administrative expenses
associated with repurchases of Shares; any attorneys and accountants engaged
on
behalf of the Fund, except to the extent excluded above; audit and tax
preparation; custody; errors and omissions/directors and officers liability
insurance and a fidelity bond; equipment or services used in communicating
information regarding the transactions among the Fund and any custodian or
other
agent engaged by the Fund; fees and travel-related expenses of the independent
Directors of the Fund or the fees of Subadministrators.
8.
Compensation. The
Administrator shall not be entitled to any compensation for the services
provided under this Agreement, except for distributions made to the
Administrator as a member of A T Funds, LLC, the investment adviser to A
T Fund
of Funds, the sole series of A T Investment Trust and the entity in which
the
Fund intends to invest substantially all of its assets, pursuant to the Limited
Liability Company Operating Agreement of A T Funds, LLC, dated July 27, 2004,
between Administrator and Treesdale Partners, LLC, to the extent such
distributions may be deemed to be compensation for services provided
hereunder.
9.
Liability
and Indemnity of the Administrator.
(a) Limitation
of Liability. In the absence of willful misfeasance, bad faith,
gross negligence or reckless disregard of the obligations or duties hereunder
on
the part of the Administrator or any member, director, officer, employee
or
agent of the Administrator, the Administrator shall not be subject to liability
to the Fund or any shareholder of the Fund for entering into this Agreement
and/or for any act or omission in the course of, or connected with, rendering
services hereunder or for any losses that may be sustained in the purchase,
holding or sale of any investment or security.
(b) Indemnification. To
the fullest extent permitted by applicable law, the Fund shall indemnify
and
hold harmless the Administrator and its members, directors, officers, managers
and employees (any such person, an “Indemnified Party”) against any loss,
liability, claim, damage or expense (including the reasonable cost of
investigating and defending any alleged loss, liability, claim, damage or
expenses and reasonable counsel fees incurred in connection therewith) arising
out of the Indemnified Party’s performance or non-performance of any duties
under, or the execution of, this Agreement; provided, however, that
nothing herein shall be deemed to protect any Indemnified Party against any
liability to which such Indemnified Party would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance
of
duties hereunder or by reason of reckless disregard of obligations and duties
under this Agreement.
10.
Term
and Termination.
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(a) Term. This
Agreement shall become effective on the date hereof. Unless
terminated as herein provided, this Agreement shall remain in full force
and
effective for so long as the Investment Management Agreement, dated February
22,
2005 (as amended, supplemented or modified from time to time, the “Investment
Management Agreement”), between A T Funds, LLC and A T Funds Investment Trust, a
Delaware statutory trust, on behalf of its series A T Fund of Funds, remains
in
effect.
(b) Termination. This
Agreement may be terminated at any time, without payment of any penalty,
by the
Board of Directors, on sixty (60) days’ written notice to the
Administrator. This Agreement shall automatically and immediately
terminate upon termination of the Investment Management Agreement.
(c) Termination
upon Expulsion or Suspension. If the Administrator ever becomes a
member of the NASD, thereafter the Administrator shall immediately notify
the
Fund upon the event of the Administrator’s expulsion or suspension by the
NASD. If the Administrator ever becomes a member of the NASD,
thereafter this Agreement shall automatically and immediately terminate in
the
event of the Administrator’s expulsion or suspension by the NASD.
11.
Intentionally
Reserved.
12.
Nonpublic
Personal Information. Notwithstanding any provision herein to the
contrary, the Administrator agrees on behalf of itself and its directors,
officers, and employees (a) to treat confidentially and as proprietary
information of the Fund (i) all records and other information relative to
the
Fund and its prior, present or potential shareholders, and (ii) any “nonpublic
personal information,” as such term is defined under Section 248.3(t) of
Regulation S-P (“Regulation S-P”), promulgated under the
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (the “Privacy Act”), and (b) not to use such
records and information for any purpose other than the performance of the
Administrator’s responsibilities and duties hereunder, or as otherwise permitted
by the privacy policies adopted by the Fund, Regulation S-P or the Privacy
Act,
except after prior notification to and approval in writing by the
Fund. Such written approval shall not be unreasonably withheld by the
Fund and may not be withheld where the Administrator may be exposed to civil
or
criminal contempt proceedings for failure to comply after being requested
to
divulge such information by duly constituted authorities, or when so requested
by the Fund.
13.
Use
of
Name and Logo. The name and logo of the Administrator or the name
of any of its affiliates, or any derivative associated with those names,
are the
valuable property of the Administrator and its affiliates. The Fund
has the right to use such name(s) or derivative(s) and/or the logo of the
Administrator in materials with respect to the Fund so long as this Agreement
is
in effect; provided, however, that the Administrator shall have the
right to prior review of any such use. Upon termination of this
Agreement, the Fund and its representatives shall forthwith cease to use
such
name(s) or derivative(s) or logo.
14.
General
Provisions.
(a) Notices. Any
notice to be given or to be served upon the Fund or any party hereto in
connection with this Agreement must be in writing (which may include a
facsimile) and will be deemed to have been given and received when delivered
to
the address set forth on the
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signature
page hereto, or such other address as a party hereto may
designate by giving five (5) days’ prior written notice to the other party, as
applicable.
(b) Independent
Contractor. The Administrator shall, for all purposes herein, be
deemed to be an independent contractor, and shall, unless otherwise expressly
provided and authorized to do so, have no authority to act for or represent
the
Fund in any way, or in any way be deemed an agent for the Fund.
(c) Entire
Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and superseded
all
prior written and oral agreements or statements by and between the
parties.
(d) Amendments. No
provision of this Agreement may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against
which
enforcement of the change, waiver, discharge or termination is
sought.
(e) Severability. If
any provision of this Agreement or the application of such provision to any
person or circumstance shall be held invalid, the remainder of this Agreement
or
the application of such provision to persons or circumstances other than
those
to which it is held invalid shall not be affected thereby.
(f) Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware in the United States without
giving effect to the conflict of laws principles thereof; provided,
however, that nothing herein shall be construed to preempt, or to be
inconsistent with, any applicable U.S. federal law, regulation or
rule.
(g) Inurement;
Third Party Beneficiary. Subject to the provisions of this
Agreement relating to transferability, this Agreement will be binding upon
and
inure to the benefit of the parties and their respective successors and
permitted assigns. The Administrator agrees that the Fund may enforce
any rights it may have as set forth in this Agreement, as an intended third
party beneficiary of this Agreement as if the Fund were an actual party to
this
Agreement.
(h) Pronouns. All
pronouns and all variations thereof shall be deemed to refer to the masculine,
feminine or neuter, singular or plural, as the context in which they are
used
may require.
(i) Headings. All
headings herein are inserted only for convenience and ease of reference and
are
not to be considered in the construction or interpretation of any provision
of
this Agreement.
(j) Counterparts. This
Agreement may be executed, manually or by facsimile, in counterparts, each
of
which shall be deemed an original, but all of which shall constitute one
and the
same instrument.
[SIGNATURE
PAGE TO FOLLOW]
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IN
WITNESS WHEREOF, the parties hereto have caused this instrument to be executed
as of the day and year first above written.
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ALLEGIANCE
INVESTMENT MANAGEMENT, LLC
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ADDRESS:
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By:
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Name:
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▇. Popof
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Title:
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Chief
Financial Officer
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A T
FUND OF FUNDS LTD.
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ADDRESS:
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By:
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Name:
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▇. ▇▇▇▇▇▇▇
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Title:
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Chief
Executive Officer
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