ADMINISTRATION, FUND ACCOUNTING AND RECORDKEEPING AGREEMENT
THIS AMENDED AND RESTATED
AGREEMENT (the “Agreement”) is made as of this __ day of _____, 20__ (the
“Effective Date”), by and between FEG ABSOLUTE ACCESS TEI FUND LLC, a Delaware
limited liability company (the “Fund”), and UMB Fund Services, Inc., a Wisconsin
corporation (the “Administrator”).
WHEREAS, the Fund is a limited
liability company which is authorized to offer and sell membership interests in
the Fund representing interests in a separate portfolio of securities and other
assets (the “Interests”) in reliance on exemptions provided in the Securities
Act of 1933 (the “Securities Act”) and state securities laws for transactions
not involving any public offering; and
WHEREAS, in pursuit of its
investment objective, the Fund will invest its assets primarily in FEG ABSOLUTE
ACCESS TEI FUND LDC, a Cayman Islands limited
duration company (the “TEI Offshore Fund”) which will in turn invests all or
substantially all of its assets in FEG Absolute Access Fund LLC (“Master
Fund”) which will in turn invest its assets primarily in private investment
funds (“Portfolio Funds”); and
WHEREAS, the Fund and the
Administrator desire to enter into an agreement pursuant to which the
Administrator shall provide certain administration, fund accounting and
recordkeeping services to the Fund and limited administration services to the
TEI Offshore Fund, as agreed to by the parties.
NOW, THEREFORE, in
consideration of the mutual promises and agreements herein contained and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto, intending to be legally bound, do hereby agree as
follows:
1. Appointment
The Fund hereby appoints the
Administrator as administrator, fund accountant and record keeper of the Fund
for the period and on the terms set forth in this Agreement. The
Administrator accepts such appointment and agrees to render the services herein
set forth, for the compensation herein provided.
2. Services
(a) Subject
to the direction and control of the Fund’s Board of Directors (the “Board”) and
utilizing information provided by the Fund and its agents and service providers,
the Administrator will provide the services listed on Schedule A
hereto. The duties of the Administrator shall be confined to those
expressly set forth therein, and no implied duties are assumed by or may be
asserted against the Administrator hereunder.
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(b) The
Board shall instruct, as applicable, to the extent that such relationships and
authority exists, the Fund’s or Master Fund’s Investment Adviser(s); Portfolio
Funds managers (each a “Portfolio Manager”); prime broker and/or custodian;
legal counsel; independent accountants; other service providers; and agents,
past or present, to cooperate with the Administrator and to provide the
Administrator with such information, documents and advice relating to the Fund
as necessary and/or appropriate or as requested by the Administrator, in order
to enable the Administrator to perform its duties hereunder. In
connection with its duties hereunder, the Administrator shall (without
investigation or verification) be entitled and is hereby instructed to, rely
upon any and all instructions, advice, information or documents provided to the
Administrator by an officer or representative of the Master Fund’s manager, FEG
Investors LLC (the “Manager”), or the Fund or by any of the aforementioned
persons. The Administrator shall be entitled to rely on any document
that it reasonably believes to be genuine and to have been signed or presented
by the proper party. Fees charged by such persons shall be an expense
of the Fund. The
Administrator shall not be held to have notice of any change of authority of any
officer, agent, representative or employee of the Manager, the Fund, Investment
Adviser(s), Portfolio Managers or service provider until receipt of written
notice thereof from the Fund. As used in this Agreement, the term
“Investment Adviser” includes all investment advisers, sub-advisers and persons
performing similar services directly to the Master Fund.
(c) The
Administrator hereby agrees that all records which it maintains for the Fund
pursuant to its duties hereunder are the property of the Fund and further agrees
to surrender promptly to the Fund any of such records upon the Manager’s
request. The Administrator will maintain such records for legally
required periods during the term of this Agreement.
(d) With
respect to the underlying Portfolio Funds in which the Master Fund invests, the
Administrator shall price such investments based on the valuations provided to
it by the Master Fund and/or the Portfolio Managers as determined by such
entities in accordance with the procedures stated in the Master Fund’s
Confidential Private Placement Memorandum dated September 29, 2010, and any
successor thereto (the “Offering Memorandum”). The
Administrator is authorized to rely on the prices provided by the Master Fund’s
Portfolio Managers or other authorized representative of the Fund or Master Fund
without investigation or verification.
(e) The
Board and Portfolio Managers (as to the Portfolio Managers, through the Fund’s
investment in the Master Fund [via the TEI Offshore Fund]) have and retain
primary responsibility for all compliance matters relating to the Fund, and the
Portfolio Manager(s) have and retain primary responsibility for all compliance
matters relating to the Portfolio Funds, including but not limited to compliance
with all applicable provisions of the Securities Act, the Investment Company Act
of 1940, as amended (the “1940 Act”), state securities laws, the Internal
Revenue Code of 1986, as amended, the USA PATRIOT Act of 2001, the
Xxxxxxxx-Xxxxx Act of 2002. In addition, the Fund’s Board and
Portfolio Managers (as to the Portfolio Managers, through the Fund’s investment
in the Master Fund [via the TEI Offshore Fund]) have and retain primary
responsibility for compliance matters relating to the policies and limitations
of the Fund relating to the portfolio investments as set forth in the Offering
Memorandum. The Administrator’s monitoring and other functions
hereunder shall not relieve the Board and the Portfolio Manager(s) of their
primary day-to-day responsibility for assuring such compliance.
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Notwithstanding the
foregoing, the Administrator will be responsible for its own compliance
with such statutes insofar as such statutes are applicable to the services it
has agreed to provide hereunder, and will promptly notify the Fund if it becomes
aware of any non-compliance which relates to the Fund. The Administrator shall
provide the Fund with quarterly and annual certifications (on a calendar basis)
with respect to the design and operational effectiveness of its compliance and
procedures.
The Administrator hereby confirms that
it is subject to the USA PATRIOT Act of 2001 and that it has implemented and
enforces an anti-money laundering program in compliance with applicable
laws.
(f) The Fund hereby
certifies that it has undertaken (or will undertake in a timely manner) all
filings and other actions necessary to permit the Fund to lawfully offer and
sell Interests in the Fund without registration under the Securities Act and the
applicable securities laws of each state and territory in which the Fund intends
to offer and sell Interests, except for the Administrator’s Blue Sky related
duties as set forth on Schedule
A. The Fund is not delegating to the Administrator any
responsibility to monitor or otherwise take any actions with respect to the
qualification for or maintenance of any applicable Federal or state securities
law exemptions.
(g) The Administrator shall
maintain a disaster recovery and business continuity plan and adequate and
reliable computer and other equipment necessary and appropriate to carry out its
obligations under this Agreement. Upon the Fund’s reasonable request, the
Administrator shall provide supplemental information concerning the aspects of
its disaster recovery and business continuity plan that are relevant to the
services provided hereunder.
3. Fees; Delegation;
Expenses
(a) In
consideration of the services rendered pursuant to this Agreement, the Fund will
pay the Administrator a fee, computed and payable monthly based on monthly net
assets, plus out-of-pocket expenses, each as provided in Schedule B hereto. In
addition, to the extent that the Administrator corrects, verifies or addresses
any prior actions or inactions by the Fund or by any other service provider, the
Administrator shall be entitled to additional fees as provided in Schedule
B. Fees shall be adjusted in accordance with Schedule B or as
otherwise agreed to by the parties from time to time. The parties may amend this
Agreement to include fees for any additional services requested by the Fund,
enhancements to current services, or to add funds for which the Administrator
has been retained. The Fund agrees to pay the Administrator’s then
current rate for additional services provided, or for enhancements to existing
services currently provided, after the execution of this Agreement.
(b) For
the purpose of determining fees payable to the Administrator, net asset value
shall be computed in accordance with the Fund’s Operating Agreement, the
Offering Memorandum and the resolutions of the Board, if any. The fee for the
period from the day of the month charges begin accruing under this Agreement
until the end of that month shall be pro-rated according to the proportion that
such period bears to the full monthly period. Upon any termination of
this Agreement before the end of any month, the fee for such part of a month
shall be pro-rated according to the proportion which such period bears to the
full monthly period and shall be payable upon the date of termination of this
Agreement. Should the Fund be liquidated, merged with or acquired by
another fund or investment company, any accrued fees shall be immediately
payable.
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(c) The
Administrator will bear all expenses incurred by it in connection with the
performance of its services under Section 2, except as otherwise provided
herein. The Administrator shall not be required to pay or finance any
costs and expenses incurred in the operation of the Fund, including, but not
limited to: taxes; interest; brokerage fees and commissions; salaries, fees and
expenses of the Manager or any officers; any Securities and Exchange Commission
(the “Commission”) fees and state Blue Sky fees; advisory fees; charges of
custodians, prime brokers, transfer agents, dividend disbursing and accounting
services agents and other service providers; security pricing services;
insurance premiums; outside auditing and legal expenses; costs of organization
and maintenance of corporate existence; taxes and fees payable to federal, state
and other governmental agencies; preparation, typesetting, printing, proofing
and mailing of Statements of Additional Information, Offering Memoranda or
notices, forms or applications and proxy materials for regulatory purposes and
for distribution to prospective or current members; preparation, typesetting,
printing, proofing and mailing and other costs of investor reports; expenses in
connection with the electronic transmission of documents and information
including electronic filings with the Commission and the states; research and
statistical data services; expenses incidental to holding meetings of the Fund’s
members and Manager; fees and expenses associated with internet, e-mail and
other related activities; expenses incurred for distribution of Interests and
extraordinary expenses. The Administrator shall not be required to
pay any Blue Sky fees or take any related Blue Sky actions except as set forth
on Schedule A,
and then not unless and until it has received written, prior authorization and
the amount of such fees from the Fund.
(d) Except
as otherwise specified, fees payable hereunder shall be calculated in arrears
and billed on a monthly basis. The Fund agrees to pay all fees within
thirty days of receipt of each invoice. The Administrator retains the
right to charge interest in the amount of 1-1/2 percent per month on any amounts
that remain unpaid beyond such thirty day period.
4. Proprietary and Confidential
Information
The Administrator agrees on behalf of
itself and its employees to treat confidentially and as proprietary information
of the Fund all records relative to the Fund, its business and the Fund’s
members, not to use such records and information for any purpose other than
performance of its responsibilities and duties hereunder, and not to disclose
such information except where the Administrator may be exposed to civil or
criminal proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities or court process, when subject to
governmental or regulatory audit or investigation, or when so requested by the
Fund. In case of any requests or demands for inspection of the records of the
Fund, the Administrator will endeavor to notify the Manager promptly and to
secure instructions from a representative of the Manager as to such inspection,
unless prohibited by law from making such notification. Records and information
which have become known to the public through no wrongful act of the
Administrator or any of its employees, agents or representatives, and
information which was already in the possession of the Administrator prior to
the date hereof, shall not be subject to this paragraph. The
provisions of this Section 4 shall survive any termination of this
Agreement.
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5. Limitation of
Liability
(a) The Administrator
shall not be liable for any error of judgment or mistake of law or for any loss
suffered by the Fund in connection with the matters to which this Agreement
relates, except for a loss resulting from the Administrator’s fraud, willful
misfeasance, bad faith or negligence in the performance of its duties or from
reckless disregard by it of its obligations and duties under this
Agreement. Furthermore, the Administrator shall not be liable for (i)
any action taken or omitted to be taken in accordance with or in reliance upon
written or oral instructions, advice, data, documents or information (without
investigation or verification) received by the Administrator from or on behalf
of the Manager or an officer or representative of the Fund, or from a
representative of any of the parties referenced in Section 2, (ii)
its reliance on the security valuations without investigation or verification
provided by the Fund’s Manager, a Portfolio Manager or other representatives of
the Fund, (iii) any liability arising from the offer or sale of any Interest by
the Fund in reliance on exemptions from registration under the Securities Act
and the applicable securities laws of each state and territory in which the Fund
intends to offer and sell Interests, or (iv) any action taken or omission by the
Fund, the Manager, Investment Adviser(s), Portfolio Managers or any past or
current service provider.
(b) The
Administrator assumes no responsibility hereunder, and shall not be liable, for
any default, damage, loss of data or documents, errors, delay or any other loss
whatsoever caused by events beyond its reasonable control. The
Administrator will, however, take all reasonable steps to minimize service
interruptions for any period that such interruption continues beyond its
control. Accordingly, Administrator agrees to maintain and annually
test a business resumption plan reasonably designed to minimize service
interruptions.
(c) The
Fund agrees to indemnify and hold harmless the Administrator, its employees,
agents, officers, directors, affiliates and nominees (collectively, the
“Indemnified Administrator Parties”) from and against any and all claims,
demands, actions and suits, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, reasonable counsel fees and other
expenses of every nature and character which may be asserted against or incurred
by any Indemnified Administrator Party or for which any Indemnified
Administrator Party may be held liable (a “Claim Against Administrator”), except
to the extent a Claim Against Administrator resulted from the Administrator’s
fraud, willful misfeasance, bad faith, or negligence in the performance of its
duties hereunder or from reckless disregard by it of its obligations and duties
hereunder, arising out of or in any way relating to (i) the Administrator’s
actions or omissions; (ii) the Administrator’s reliance on, implementation of or
use of (without investigation or verification) advice, instructions, requests,
directions, information, data, records and documents received by the
Administrator from any party referenced in Section 2 hereof or other
representative of the Fund, (iii) any breach of any of the Fund’s obligations,
representations or warranties hereunder, or (iv) any action taken by or omission
of the Fund, its Manager, their Investment Adviser(s), any Portfolio Managers,
or any past or current service provider.
(d) The
Administrator agrees to indemnify and hold harmless the Fund, its employees,
agents, officers, directors, affiliates and nominees (collectively, the
“Indemnified Fund Parties”) from and against any and all claims, demands,
actions and suits, and from and against any and all judgments, liabilities,
losses, damages, costs, charges, reasonable counsel fees and other expenses of
every nature and character which may be asserted against or incurred by any
Indemnified Fund Party or for which any Indemnified Fund Party may be held
liable arising out of or in any way relating to the Administrator’s fraud,
willful misfeasance, bad faith, or negligence in the performance of its duties
hereunder or from reckless disregard by it of its obligations and duties
hereunder.
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(e) In
no event and under no circumstances shall the either party, their affiliates or
any of its or their officers, directors, members, agents or employees be liable
to anyone, including, without limitation, the other party, under any theory of
tort, contract, strict liability or other legal or equitable theory for lost
profits, exemplary, punitive, special, indirect or consequential damages for any
act or failure to act under any provision of this Agreement regardless of
whether such damages were foreseeable and even if advised of the possibility
thereof. The indemnity and defense provisions set forth in this Section 5 shall
indefinitely survive the termination and/or assignment of this
Agreement.
6. Term
(a) This
Agreement shall become effective with respect to the Fund as of the date this
Agreement is executed. This Agreement shall continue in effect for
one year beginning on the Effective Date (the “Initial
Term”). Thereafter if not terminated as provided herein, the
Agreement shall continue automatically in effect as to each Fund for successive
annual periods.
(b) The terms of this
Agreement shall not be waived, altered, modified, amended or supplemented in any
manner whatsoever except by a written instrument signed by the Administrator and
the Fund.
(c) Either party
may terminate this Agreement at the end of the Initial Term or at the end of any
successive annual term (the “Termination Date”) by giving the other party a
written notice not less than sixty (60) days prior
to the end of the respective term. However, Administrator agrees to
waive such notice requirement in the event the Fund’s Board decides to liquidate
the Fund. Notwithstanding anything herein to the contrary, upon the
termination of this Agreement or the liquidation of the Fund, the Administrator
shall deliver the records of the Fund in the form maintained by the
Administrator (to the extent permitted by applicable license agreements) to the
Manager or person(s) designated by the Manager at the Fund’s cost and expense,
and thereafter the Manager or its designee shall be solely responsible for
preserving the records for the periods required by all applicable laws, rules
and regulations. The Administrator shall be entitled to maintain a copy of such
records for the sole purpose of defending itself against any action arising
under or as a result of this Agreement or as otherwise required or permitted by
law. The Fund shall be responsible for all expenses associated with
the movement (or duplication) of records and materials and conversion thereof to
a successor fund accounting and administrative services agent, including all
reasonable trailing expenses incurred by the Administrator. In
addition, in the event of termination of this Agreement, or the proposed
liquidation or merger of the Fund, and the Fund requests the Administrator to
provide additional services in connection therewith, the Administrator shall
provide such services and be entitled to such compensation as the parties may
mutually agree.
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7. Non-Exclusivity
The services of the Administrator
rendered to the Fund are not deemed to be exclusive. The
Administrator may render such services and any other services to others,
including other investment vehicles, including hedge funds, provided that its
services hereunder to the Fund are not thereby impaired.
8. Governing Law;
Invalidity
This Agreement shall be governed by
Wisconsin law, excluding the laws on conflicts of laws. To the extent
that the applicable laws of the State of Wisconsin, or any of the provisions
herein, conflict with the applicable provisions of the 1940 Act, the latter
shall control, and nothing herein shall be construed in a manner inconsistent
with the 1940 Act or any rule or order of the Commission
thereunder. In such case, the parties shall in good faith modify or
substitute such provision consistent with the original intent of the
parties.
9. Notices
Any notice required or permitted to be
given by either party to the other shall be in writing and shall be deemed to
have been given when sent by registered or certified mail, postage prepaid,
return receipt requested, as follows: Notice to the Administrator
shall be sent to UMB Fund Services, Inc., 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X,
Xxxxxxxxx, XX, 00000, Attention: Xxxxx X. Xxxxxxx, with a copy to General
Counsel, and notice to the Fund shall be sent to FEG ABSOLUTE ACCESS TEI FUND
LLC, 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, XX, 00000,
Attention: General Counsel.
10. Entire
Agreement/Modification
This Agreement, together with the
Schedules attached hereto, constitutes the entire Agreement of the parties
hereto. No provisions of this Agreement may be amended, modified or
waived, in any manner except in writing, properly executed by both parties
hereto.
11.
Counterparts
This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original
agreement but such counterparts shall together constitute but one and the same
instrument. The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such
party.
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12. Non-Assignment
The Administrator may not assign this
agreement without the prior, written approval of the Fund.
13. Independent Contractor
Status
Nothing in this Agreement is intended
to, or shall be deemed to constitute a partnership, association or joint venture
between the Fund and the Administrator in the conduct of the provisions of this
Agreement. The Administrator shall at all times have the status of an
independent contractor without the right or authority to impose tort,
contractual or any other liability on the Fund.
14. Waiver
Any waiver by either party of any
provision or condition of this Agreement shall not be construed or deemed to be
a waiver of any other provision or condition of this Agreement, nor a waiver of
a subsequent breach of the same provision or condition.
15. Severability
If any part, term or provision of this
Agreement is held to be illegal, in conflict with any law or otherwise invalid
by any court of competent jurisdiction, the remaining portion or portions shall
be considered severable and shall not be affected, and the rights and
obligations of the parties shall be construed and enforced as if this Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
16. Force
Majeure
If by reason of Force Majeure, the
parties are unable in whole or in part to act in accordance with this Agreement,
the parties shall not be deemed in default during the continuance of such
inability provided, however, that either party shall have the right to terminate
this Agreement upon written notice to the other party if the other party is
unable to satisfy its obligations for fourteen (14) days due to such Force
Majeure.
The term "Force Majeure" as used herein
shall mean without limitation: acts of God; strikes or lockout; acts of public
enemies; insurrections; riots; epidemics; lightening; earthquakes; fire; storms;
flood; washouts; droughts; arrests; restraint of government and people; civil
disturbances; and explosions.
Administrator shall, however, remedy,
with all reasonable dispatch, any such cause to the extent within its reasonable
control, which prevents Administrator from carrying out its obligations
contained herein.
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17. Miscellaneous
(a) The
Fund hereby grants to Administrator the limited power of attorney on behalf of
the Fund to sign Blue Sky forms and related documents in connection with the
performance of its obligations under this Agreement.
(b) The
undersigned represent and warrant that they are duly authorized to execute this
Agreement on behalf of the respective parties.
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by a duly authorized
officer as of the day and year first above written.
(the
“Fund”)
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By:
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Title:
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UMB
FUND SERVICES, INC.
(“Administrator”)
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By:
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Chief
Executive Officer
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9
Schedule
A
to
the
by
and between
and
UMB
Fund Services, Inc.
Services
Subject
to the direction and control of the Manager and utilizing information provided
by the Fund, the Master Fund, the Manager, the Portfolio Managers and authorized
representatives of the Fund, the Administrator will:
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provide
office space, facilities, equipment and personnel to carry out its
services hereunder;
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compile
data for and prepare with respect to the Fund Semi-Annual Reports on Form
N-SAR and provide to Fund counsel for its review of the same; upon the
advice and direction of Fund counsel, file Form N-SAR with the Commission
as required;
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prepare
and review the financial statement for the Fund’s Annual and Semi-Annual
Reports included in Form N-CSR as required under the Xxxxxxxx-Xxxxx Act;
assist in compiling exhibits and disclosures for Form N-CSR as requested
by the Board; provide to Fund counsel for its review of Form N-CSR; upon
the advice and direction of Fund counsel, file Form N-CSR with the
Commission as required;
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in
connection with the Fund’s first and third fiscal quarters, prepare Form
N-Q and provide to Fund counsel for its review of the same; upon the
advice and direction of Fund counsel, file Form N-Q with the Commission as
required;
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subject
to having received all relevant information from the Fund and upon the
advice and direction of Fund counsel, prepare Form N-PX and provide to
Fund counsel for its review of the same; upon the advice and direction of
Fund counsel, file Form N-PX with the Commission as
required;
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at
the direction of Fund counsel and with the assistance of the Fund, prepare
and file such other regulatory forms as may be required by the Commission
and/or which are customary, consistent with standard market
practice;
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provide
financial and Fund performance information for inclusion in
the Registration Statement for the Fund (on Form N-2 or any
replacement therefor) and any amendments thereto, subject to the review of
Fund counsel;
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assist
in the acquisition of the Fund’s fidelity bond required by the 1940 Act,
monitor the amount of the bond and make the necessary Commission filings
related thereto;
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from
time to time as the Administrator deems appropriate (but no less
frequently than quarterly), check the Fund’s compliance with the policies
and limitations of the Fund relating to the portfolio investments as set
forth in the Fund’s Offering Memorandum and Statement of Additional
Information (but these functions shall not relieve the Fund’s Portfolio
Managers, if any, of their primary day-to-day responsibility for assuring
such compliance);
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develop
with legal counsel and the secretary of the Fund an agenda and draft
resolutions for each Board meeting and, if requested by the Board, attend
Board meetings and prepare minutes;
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prepare
and deliver Form 1099s to Board members and other Fund
vendors;
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at
the direction of the Manager, assist the Fund with its obligations under
the USA PATRIOT Act by (1) at such time as directed by the Manager,
rejecting Subscription Agreements that are not accompanied by required
identifying information; (2) checking identifying information against the
Fast Data AML database (or any successor thereto) licensed by the
Administrator; (3) checking persons submitting Subscription Agreements
against the Office of Foreign Asset Controls (OFAC) list; (4) upon
consultation with the Manager, filing a suspicious activity report with
the appropriate authorities; (5) permitting federal regulators access to
such information and records maintained by the Administrator relating to
the Administrator’s implementation of the Fund’s monitoring obligations,
as they may request, and (6) permitting such federal regulators to inspect
the Administrator’s implementation of such monitoring obligations on
behalf of the Fund;
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upon
the advice and direction of the Manager, prepare and perfect notice
filings with the various states pursuant to their Blue Sky laws as
necessary in connection with Fund sales in the various
states;
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on
a periodic basis pursuant to the terms of the Operating Agreement, and as
may also be necessary from time to time to comply with applicable Federal
or state securities laws, prepare a report reflecting the Fund’s
performance and provide comparisons of performance information to
pertinent benchmarks;
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provide
the statement to investors required by Commodity Futures Trading
Commission Rule 4.7(b)(2) on a quarterly basis, provided that the Fund
must provide the Administrator with its approval of the information to be
included in such statement no later than three business days prior to the
end of the 30 calendar day period provided by Rule
4.7(b)(2);
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assist
in the preparation of the Fund’s annual financial reports, subject to the
review and approval of the Fund and the Fund’s independent
accountants;
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review
subscription documents for completeness; provided, however, the Manager
remains solely responsible for determining
accreditation;
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at
the direction of the Manager, establish and maintain member capital
accounts for each investor;
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coordinate
processing and reporting of investor
activity;
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calculate
items of income, expense, gain and loss, and allocate such items to
individual members’ capital accounts in accordance with the Fund’s
Operating Agreement;
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enter
all security transactions into the accounting
records;
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receive
and record all transaction information provided by the
Manager;
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where
applicable, verify individual security settlements with the
custodian/prime broker;
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maintain
a security ledger of transactions;
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maintain
individual tax lots for each security
purchase/sale;
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determine
realized gains or losses on security
trades;
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monitor
individual investments for corporate actions, cash dividends and capital
changes;
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coordinate
and provide necessary information for the preparation and filing of all
federal and state income tax returns (and such other required tax filings
as may be agreed to by the parties) for execution by the Fund, subject to
the review and approval of the Fund and the Fund’s independent
accountants;
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coordinate
completion of tax allocations;
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track
book-to-tax differences in the accounting
records;
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calculate
contractual expenses (e.g., advisory
fees);
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calculate
the incentive allocation, if applicable, pursuant to the terms of the
Fund’s Operating Agreement;
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oversee
allocation of hot issue gains;
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determine
and periodically monitor the Fund’s income and expense accruals and cause
all appropriate expenses to be paid from Fund assets on proper
authorization from the Fund;
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calculate
net asset values of the Fund (i) in accordance with the Fund’s operating
documents as provided to the Administrator, and (ii) based on security
valuations provided by the Fund, the Manager and/or the Portfolio
Managers, if applicable, as provided
herein;
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maintain
all general ledger accounts and related
subledgers;
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|
§
|
maintain
the accounts, books and other documents produced by the Administrator in
connection with its services
hereunder;
|
|
§
|
generally
assist in the Fund’s administrative operations as mutually agreed to by
the parties;
|
|
·
|
assist
the Fund’s Chief Compliance Officer with the development and maintenance
of a compliance calendar for the Fund, provided that it is understood by
the parties that the Fund’s Chief Compliance Officer is ultimately
responsible for such calendar;
|
|
·
|
prepare
and file state securities qualification/notice compliance filings, with
the advice of the Fund’s legal counsel, upon and in accordance with
instructions from the Fund, which instructions will include the states to
qualify in, the amounts of Shares to initially and subsequently qualify
and the warning threshold to be
maintained;
|
|
·
|
coordinate
processing of tender offers made by the Fund, which shall include (i)
distributing tender offer letters to investors, (ii) coordinating receipt
of tender orders from investors, (iii) providing the Fund with a daily
report detailing the status and amount of incoming tender orders, (iv)
delivering promissory notes to investors whose tender orders have been
accepted, as described in the Offering Memorandum, (v) coordinating the
calculation of holdback amounts and (vi) upon direction from the Fund,
coordinating release of funds to
investors;
|
|
·
|
distribute
offering and subscription materials to or for prospective investors as
directed by the Fund, pursuant to arrangements with fund “platforms” or
other distribution arrangements of the
Fund;
|
|
·
|
coordinate
processing of new investor subscriptions, which shall include (i)
coordinating receipt of funds from investors, (ii) providing the Fund with
a daily report detailing the status and amount of incoming wires and
subscription agreements, (iii) upon direction from the Fund, coordinating
transfer of funds between the escrow agent, the Fund and the Master Fund
and/or returning funds to investors whose subscriptions have not been
accepted and (iv) sending acceptance letters to new
investors;
|
|
·
|
on
a periodic basis (expected to be quarterly) prepare and provide to the
Board a report reflecting the Fund’s
performance;
|
|
·
|
upon
direction by Fund or Fund counsel, prepare Section 16 filings for the
Fund’s Directors and officers; provide to Fund counsel for its review and
upon the advice and direction of Fund counsel, file with the Commission as
required.
|
Audit
Coordination:
|
|
1.
|
Coordinate
and oversee the annual audit of the Fund’s financial
statements.
|
|
|
·
|
Conduct
all stages of audit planning and
coordination.
|
|
|
·
|
Negotiate
fees and engagement letters with outside auditors, where
appropriate.
|
13
|
|
·
|
Prepare
work papers and schedules for
auditors.
|
|
|
·
|
Prepare
financial statements, footnotes, and report
drafts.
|
|
|
·
|
Act
as liaison between auditors and client on any audit
issues.
|
Compliance and
Reporting:
|
|
1.
|
Process
all subscription and redemption
documents.
|
|
|
·
|
Conduct
AML procedures on all proposed
subscriptions
|
|
|
·
|
Give
notification of any rejected or suspect
subscriptions
|
The
duties of the Administrator shall be confined to those expressly set forth
herein, and no implied duties are assumed by or may be asserted against the
Administrator hereunder.
14
Schedule
B
to
the
by
and between
and
UMB
Fund Services, Inc.
Fees
|
Accounting
and Administration
|
|||||
|
Annual
Asset-Based Fees
|
|||||
|
n
|
Up
to $250 million
|
8.0
basis points, plus
|
|||
|
n
|
Next
$250 million
|
6.0
basis points, plus
|
|||
|
n
|
Next
$250 million
|
4.0
basis points, plus
|
|||
|
n
|
Over
$750 million
|
3.0
basis points
|
|||
|
Minimum
Flat Fee
|
|||||
|
Monthly
fee, per Feeder Fund
|
$ | 2,000 | |||
|
SEC
Administration Fee
|
|||||
|
Monthly
fee
|
$ | 3,000 | |||
|
Investor
Recordkeeping
|
|||||
|
Fund
Investor Servicing Fees – Monthly Allocations to Investors
|
|||||
|
Per
fund, per month, for Investor reporting
|
|||||
|
n
|
Up
to 25 accounts
|
$
1,000, plus
|
|||
|
n
|
Next
75 accounts
|
$15
per account, plus
|
|||
|
n
|
Next
400 accounts
|
$10
per account
|
|||
|
Transaction
Fees
|
|||||
|
n
|
Initial
one-time set-up per new account
|
$ | 12.50 | ||
|
n
|
Transaction
and statement fees (address change, additional purchase,
etc.)
|
$ | 5.00 | ||
Transaction
and statement fees will be determined on a per-fund basis and billed
monthly.
15
Out-of-Pocket
Expenses
Out-of-pocket
expenses include but are not limited to normal, reasonable recurring expenses
such as pricing
services, software license fees for section 16 reporting, postage,
express delivery charges, courier services, printing of reports, photocopying,
stationery, record retention/storage/retrieval, travel on behalf and request of
the fund, and expenses, including but not limited to attorney’s fees, incurred
in connection with
responding to and complying with the Commission or other regulatory
investigations, inquiries or subpoenas,
excluding routine examinations of UMB in its capacity as a service provider
to the
funds. Negotiated project fees may apply for special programming to create
custom reports.
Other
Services
Any
Services in addition to those listed herein may be provided as the parties may
agree upon from time to time. Such additional services shall be
billed at an hourly rate of $150. Notwithstanding the foregoing, section 16
reporting services will also be billed at the hourly rate of $150.
Optional
Services
|
USA
PATRIOT Act (AML)
|
||||
|
Annual
fee
|
$ | 2,000 | ||
|
Blue
Sky State Filing Fees
|
||||
|
Per
state
|
$ | 150 | ||
|
Escrow
Bank Account
|
||||
|
Monthly
fee, per account
|
$ | 125 | ||
Fees for
services not contemplated by this schedule will be negotiated on a case-by-case
basis.
16
