Scope of Services: Carta Corporate Secretarial (Luxembourg - Unhosted)

Fund: General Corporate Secretarial 

ii.  Setup and Maintenance

The Agent (as defined in your engagement letter) will: 

• Domiciliation of the fund (fund to establish its registered office at the Agent’s Luxembourg address ) 

• Incorporate and registration of the fund

• Receive, sign for and keep record of all correspondence, notices, emails, telephone memos addressed to the fund and make available or give notice of the same

• Provide premises to hold investors' general meetings, meetings of its governing body and internal committees (referred to in the fund’s operating documentation), provided that, in view of the expected attendance, the Agent 's internal conference rooms are sufficiently spacious to hold the meeting

• Select and liaise with a Luxembourg notary if required in relation to any such meeting referenced above 

• Upon proper instruction and reasonable notice, fulfilling all the legal formalities related to publications required by (i) any Luxembourg law or regulation applicable to the fund, (ii) the operating documents of the fund, or, (ii) the Luxembourg regulator ( including liaising with the RCS)

• Preparation and submission to the Commission de Surveillance du Secteur Financier (CSSF) of statutory forms to update any information concerning the fund 

• Liaise with the fund's auditor in relation to the above

Please be aware that the above domiciliation and corporate agency services will be performed in accordance with the terms set out herein, the operating documentation of the fund, applicable laws and regulations, as well as possibly by proper Instruction(s) and any operational memorandum.

 
Carta’s Corporate Secretarial Services can assist you with the following actions:

• Maintenance of statutory registers (Register of Members)

• Enter on the register every allotment, issue, transfer, conversion, redemption and/or purchase of interests along with the names and addresses of each Investor and the number of interests in each class held by such Investor

• Make the register available for inspection and supply copies of the register, in accordance with the instructions from authorized persons of the fund

• During Carta's business hours: Permit the auditor, and any duly appointed agent or representative of the fund to inspect the register and any other fund records required by this engagement to be kept by Carta

• Preparation of annual reporting to Banque Central of Luxembourg

 
Neither the Agent, nor Carta, will:

• Act as paying agent of the fund or external valuer (as defined in the AIFMD) 

• Provide any regulatory compliance monitoring service (except those set out herein). It is not the duty of the Agent to monitor or enforce the compliance of the fund, its general partner,  their directors or any other person with any restriction or guideline imposed on any of them by any of the operating documentation of the fund or by any applicable laws or regulations

• Provide any legal service (except those set out herein)

• Be required to take any legal action on behalf of the fund or its general partner unless otherwise agreed between us. If agreed, Agent shall be kept indemnified in any reasonable amount and form satisfactory to it as a prerequisite of taking such action

• Assist with strike-offs as part of this scope of service 

Necessary documents or information you will provide Carta: (5)

• Provide Service Agreements, invoices or other information needed

You are responsible for:

• As to share transfer related matters, providing us with the signed documents that Carta will be preparing at least 14 business days from effective date

• Audits of the fund 

You will: 

• Hereby authorise the Agent to open all received correspondence and to read its content, unless in relation to any piece of received correspondence clearly and prominently carrying a mention of confidentiality

• Upon request of the Agent, agree to provide special approval in relation to any aspect of the domiciliation and corporate agency services to be performed by the Agent and agree that the Agent shall not be held liable for not performing the relevant service until such approval has been given

• Acknowledge that the Agent’s performance of its obligations may be based on information obtained from sources external to the Agent and that the Agent is not required to independently verify the accuracy or completeness of this information, unless specified by law

• Commit to provide active assistance and cooperate whenever appropriate, fully and diligently, on own initiative any upon request of the Agent in the fulfillment of the Agent’s obligations set out herein and expressly acknowledge that failure to comply with this assistance may result in the Agent being unable to fulfill its duties and obligations

• Provide in reasonable time, all information, documents, minutes of meeting, etc. that are necessary to facilitate the proper performance of the Agent’s duties and obligations and complete and execute any legal documents required 

• Notify the Agent  in reasonable time of any change to the financial year end of the fund, any change of registered address of the fund or its general partner, any action taken by the Luxembourg regulator (or any relevant supervisory authority) as well as notice or judgment received by the fund or its general partner in connection with non-compliance with applicable laws or regulations

• Give prior notice to the Agent of the following events, where any such intended change, agreement, amendment, appointment or notice may have a direct or indirect, impact on the duties, obligations and/or liabilities of the Agent:

  • any change intended to be made to the fund and/or its general partner

  • any agreement or amendment to an existing agreement intended to be entered into by the fund and/or its general partner with a third party

  • any appointment intended to be made by the fund and/or its general partner

  • any amendment intended to be made to the operating documentation of the fund

  • any draft notice to be sent to or published for the attention of investors of the fund

    and commit that no such change will be effective before the Agent has expressly confirmed its acceptance in writing, which may be refused unless certain reasonable conditions are met. Such confirmation shall not be unreasonably withheld (maximum 10 business days after receipt of the prior notice given)

• Hereby authorise the Agent to accept, comply and act without making further enquiry upon any instruction given by an Authorised Person (6)  and the fund and its general partner each accepts that the Agent may rely on, and treat as genuine, any instruction reasonably believed by the Agent to have been given by an Authorised Person (a "Proper Instruction") (7)  

• Provide a list of Authorised Persons together with authorised signatures to the Agent. The Agent may accept the signatures as being authentic and cannot be held responsible for any damage caused by the fact that the signatures are fraudulent, forged, altered or corrupted 

• Hereby authorise the Agent to disclose the fund's or its general partner's identity to the counterparties, execution venues, supervisory authorities, clearing houses, issuers or their representatives duly empowered in the event any of the latter presents a request based on legal requirements or other legitimate grounds for disclosure of the fund's or the general partner's identity

• Acknowledge that the Agent may record on magnetic tape or on any other medium all or part of any telephone conversations with the fund and its general partner, its officers and representatives. Accordingly the fund and the general partner will each inform its officers and representatives of the recording of telephone conversations with the Agent. Recordings will be kept for a maximum period of 5 (five) years and may be produced in court. They shall have the same evidential value as written original documents

• Acknowledge that the Agent may, subject to prior consent of the fund or its general partner, seek advice from a professional adviser approved by the fund or its general partner, at the expense of the fund or its general partner

• Cooperate with the Agent in the preparation of any relevant operation memoranda to which the Agent will become subject. The operational memorandum may be  amended from time to time by the Agent, which will be notified in writing to the fund and its general partner with 1  months prior notice and the relevant amendments shall only be applied subject to the condition that the fund and its general partner do not raise any objection prior to the lapsing of the relevant notice period or immediately upon written acceptance of these amendments by the fund and  its general partner

• Acknowledge that all intellectual property rights8  belonging to either you or the Agent prior this contractual relationship will remain vested in that party. The Agent shall own all intellectual property rights created by the Agent and subcontractors in the course of performing its obligations herein and the fund and its general partner acknowledge and agree that the Agent shall not transfer any intellectual property rights to the fund of its general partner in relation to the computer systems, computer software or administration processes of the Agent, even if they have contributed costs for the creation of those intellectual property rights

• Grant to the Agent a royalty-free, non-exclusive, irrevocable, non-transferable licence to use the fund's and its general partner's intellectual property rights respectively to the extent necessary for the Agent to perform its duties and obligations herein. The Agent may sub-license its rights under this section to its subcontractors to the extent necessary for the performance of its duties and obligations herein

• Acknowledge and agrees that in the absence of the Agent 's negligence, wilful misconduct, fraud or breach of the terms set out herein by the Agent, the Agent shall not be liable towards the fund, the investors, the general partner, the members of the fund's or general partner's governing body with respect to any act or omission in connection with the duties and obligations performed by the Agent pursuant to the terms set out herein

• Acknowledge and agree that where the general partner and the fund have been able to establish the liability of the Agent within the limits set forth herein, the amount of the damage for which the Agent is liable shall be strictly limited to the amount of the immediate, foreseeable, direct and non-consequential damage; it being understood that the Agent may avail itself vis-à-vis the other parties of the benefit resulting from any applicable regulation or circular (such as the CSSF Circular 02/77 of 27 November 2002) which would limit – or as the case may be reduce to nil – the amount of the damage required to indemnify the general Partner, the fund and/or its investors in the event of improper performance of administration functions, services or duties

• Acknowledge and agree that the Agent shall not, under the provisions herein, be liable or have responsibility of any kind in relation to any act or fact or the omission thereof that has or should have occurred in the course of the business of the fund or of the general partner prior to the effective date of the Agent’s services

• Acknowledge and agree to indemnify and hold harmless the Agent, its governing body members, officers and employees of and from all costs, expenses, losses, damages, liabilities, demands, charges and claims of any kind or nature whatsoever that may be incurred directly or indirectly by it or made against it

You will not: 

• Take any action which might lead third parties to consider that the fund is connected with the Agent with any aim other than the relationship between the fund and the Agent providing a registered address and the services set out herein

Each of the Agent and you hereby represent and warrant to the other that:

• You are duly formed, existing, licensed, qualified and supervised as indicated in the engagement letter, 

• You will conduct your activities in accordance with applicable laws and regulations (including any circulars, guidelines or positions of the CSSF) 

• You will establish adequate controls and procedures to comply at any and all times in all material aspects with all applicable laws and regulations (including any circulars, guidelines or positions of the CSSF) to which you may be subject 

• You have full power and capacity to enter into this contractual relationship

• You will notify the other party upon occurrence of any event that would cause the foregoing representations and warranties to be longer be true 

To discuss any services that are outside the scope addressed above, please talk to your Carta representative.