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ADMINISTRATIVE SERVICES AGREEMENT
BY AND BETWEEN
CIBC XXXXXXXXXXX CORP.
AND
XANTHUS FUND, L.L.C.
CIBC Xxxxxxxxxxx Corp. ("CIBC Opco") and Xanthus Fund, L.L.C.
(the "Fund") hereby agree as follows:
THIS ADMINISTRATIVE SERVICES AGREEMENT (the "Agreement") is made as
of this _____ day of __________, 1999, by and between CIBC Opco and the Fund.
WHEREAS, CIBC Opco is in the business of providing administrative
services to investment partnerships and limited liability companies; and
WHEREAS, the Fund wishes to retain CIBC Opco 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 Opco.
(a) The Fund hereby retains CIBC Opco to provide and CIBC Opco
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 which are
retained by the Fund to provide administrative services
and custody services to the Fund;
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(iv) the handling of investor inquiries regarding the Fund
and providing them 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;
(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 funds;
(ix) assisting in the preparation of regulatory filings with
the Securities and Exchange Commission and 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 the Adviser or the Fund's
accounting agent or custodian;
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(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.
(b) Notwithstanding the appointment of CIBC Opco to provide
administrative services hereunder, the Board shall remain responsible for
supervising and controlling the management, business and affairs of the Fund.
2. CIBC Opco Fee; Reimbursement of Expenses.
(a) In consideration for the provision by CIBC Opco of its
services hereunder, the Fund will pay CIBC Opco a monthly management fee of
0.08333% (1% on annualized basis) of the Fund's "net assets" (the "CIBC Opco
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 Opco 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 Opco Fee is payable in respect of a partial month, such
fee will be appropriately pro-rated.
(c) CIBC Opco 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 Opco 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 Opco's part (or on the part
of an officer or employee of CIBC 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 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 Opco, 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'
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prior written notice. This Agreement shall also terminate automatically in the
event of its "assignment," as such term is defined by the 1940 Act and the rules
thereunder.
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.
CIBC XXXXXXXXXXX CORP.
By:_________________________________
Name:
Title:
XANTHUS FUND, L.L.C.
By:_________________________________
Name:
Title: Manager
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