INVESTOR SERVICING AGREEMENT
BY AND BETWEEN
BNY XXXXXXXX DISTRIBUTORS, INC.
AND
XXX XXXX/SHORT HEDGE FUND LLC
AGREEMENT, made as of the __th day of [ ] 2003 by and between BNY
Xxxxxxxx Distributors, Inc., a [ ] corporation ("BISYS"), and Xxx Xxxx/Short
Hedge Fund LLC, a Delaware limited liability company (the "Fund").
RECITAL
WHEREAS, BISYS and its affiliates are in the business of
providing services to registered investment companies; and
WHEREAS, the Fund wishes to retain BISYS to facilitate, on behalf
of the Fund, the provision by broker-dealers and financial advisers of personal
investor services and account maintenance services ("Investor Services") to
members of the Fund ("Members") that are customers of such broker-dealers and
financial advisers and BISYS wishes to facilitate, on behalf of the Fund, the
provision of Investor Services by broker-dealers and financial advisers to their
customers that are Members;
NOW THEREFORE, in consideration of the terms and conditions
herein contained, the parties agree as follows:
1. APPOINTMENT OF BISYS.
(a) The Fund hereby authorizes BISYS to retain
broker-dealers and financial advisers not affiliated with a broker-dealer
(including the investment adviser of the Fund and its affiliates) whose clients
purchase limited liability company interests in the Fund ("Interests"), and that
have entered into a selling appropriate agreement with the Distributor to
provide Investor Services to Members who are customers of such broker-dealers
and financial advisers (the "Investor Service Providers"), to provide Investor
Services. Investor Services shall include, but shall not be limited to:
(i) handling inquiries from Members regarding the Fund,
including but not limited to questions concerning
their investments in the Fund, capital account
balances, and reports and tax information provided
by the Fund;
(ii) assisting in the enhancement of relations and
communications between Members and the Fund;
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(iii) assisting in the establishment and maintenance of
Members' accounts with the Fund;
(iv) assisting in the maintenance of Fund records
containing Member information, such as changes of
address; and
(v) providing such other information and Member liaison
services as BISYS may reasonably request.
2. INVESTOR SERVICING FEE.
(a) In recognition of the payments BISYS will make to the
Investor Service Providers in respect of their provision of Investor Services to
Members, the Fund will pay BISYS within ten (10) days of the end of each
calendar quarter a fee equal to 0.50% (on an annualized basis) of the aggregate
value of outstanding Interests determined as of the last day of the quarter
(before any repurchases of Interests) (the "Investor Servicing Fee").
(b) BISYS may pay amounts pursuant to this Section 2 to any
affiliate of BISYS, or to the investment adviser of the Fund (or any affiliate
of the investment adviser), if such person is an Investor Service Provider.
3. DUTIES OF BISYS.
(a) BISYS agrees to retain the Investor Service Providers to
provide Investor Services and to compensate such Investor Service Providers for
their services.
(b) BISYS shall report to the Board of Managers of the Fund
(the "Board") on a quarterly basis regarding: (i) the nature of the Investor
Services provided by the Investor Service Providers; (ii) the amount of payments
made by BISYS to such Investor Service Providers; and (iii) the amount of
Investor Servicing Fees paid by the Fund.
4. LIABILITY OF THE FUND.BISYS understands and agrees that the
obligations of the Fund under this Agreement are not binding upon any Member or
any person serving on the Board (a "Manager") personally, but bind only the Fund
and the Fund's property. BISYS represents that it has notice of the provisions
of the Fund's Limited Liability Company Agreement disclaiming Member and Manager
liability for acts and obligations of the Fund.
5. ASSIGNMENT OR AMENDMENT. Any amendment to this Agreement shall
be in writing and shall be subject to the a pproval of the Board, including the
vote of a majority of the Managers who are not "interested persons," as defined
by the Investment Company Act of 1940, as amended (the "Investment Company
Act"), of the Fund. This Agreement shall automatically and immediately terminate
in the event of its "assignment," as defined by the Investment Company Act and
the rules thereunder.
6. DURATION AND TERMINATION. This Agreement may be terminated (i)
by BISYS at any time without penalty upon sixty days' written notice to the Fund
(which notice may be waived by the Fund); or (ii) by the Fund at any time
without penalty upon sixty days' written notice to BISYS (which notice may be
waived by BISYS). Any termination of this
Agreement shall not affect the obligation of the Fund to pay the Investor
Servicing Fee to compensate BISYS for payments made to any Investor Service
Provider prior to the effective date of such termination.
7. CHOICE OF LAW.This Agreement shall be governed by the laws of
the State of New York applicable to agreements made and to be performed entirely
within the State of New York (without regard to any conflicts of law principles
thereof). Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a term or provision
of the Investment Company Act shall be resolved by reference to such term or
provision of the Investment Company Act and to interpretations thereof, if any,
by the United States courts or, in the absence of any controlling decision of
any such court, by rules, regulations or orders of the Commission issued
pursuant to the Investment Company Act. In addition, where the effect of a
requirement of the Investment Company Act reflected in any provision of this
Agreement is revised by rule, regulation or order of the Commission, such
provision shall be deemed to incorporate the effect of such rule, regulation or
order.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
BNY XXXXXXXX DISTRIBUTORS, INC.
By:
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Name:
Title:
XXX XXXX/SHORT HEDGE FUND LLC
By:
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Name:
Title:
