Exhibit (k)(ii)
SERVICES AGREEMENT
BY AND BETWEEN
CSFB ALTERNATIVE CAPITAL, INC.
AND
CSFB ALTERNATIVE CAPITAL RELATIVE VALUE FUND, LLC
AGREEMENT, made as of the 28 day of March 2005, by and between CSFB
ALTERNATIVE CAPITAL, INC., a Delaware corporation (the "Administrator"), and
CSFB ALTERNATIVE CAPITAL RELATIVE VALUE FUND, LLC, a Delaware limited liability
company (the "Fund").
RECITALS
WHEREAS, the Administrator and its affiliates are in the business of
providing services to registered and unregistered investment companies; and
WHEREAS, the Fund wishes to retain the Administrator to provide various
services relating to the operations of the Fund pursuant to this Agreement and
the Administrator wishes to provide such services;
NOW THEREFORE, in consideration of the terms and conditions herein
contained, the parties agree as follows:
1. APPOINTMENT OF THE ADMINISTRATOR.
(a) The Fund hereby retains the Administrator to provide and the
Administrator hereby agrees to provide the following services to the Fund:
(i) legal and accounting support services;
(ii) the provision of office space, telephone and
utilities;
(iii) the general supervision of the entities which are
retained by the Fund to provide accounting services,
investor services and custody services to the Fund;
(iv) assisting in the drafting and updating of the Fund's
registration statement, including its prospectus and
statement of additional information;
(v) reviewing, approving and assisting in the preparation
of regulatory filings with the Securities and
Exchange Commission (the "SEC") and state securities
regulators and other Federal and state regulatory
authorities;
(vi) preparing reports to and other informational
materials for members of the Fund ("Members") and
assisting in the preparation of proxy statements and
other Member communications;
(vii) monitoring the Fund's compliance with Federal and
state regulatory requirements (other than those
relating to investment compliance);
(viii) 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 administrator, legal counsel and
independent auditors;
(ix) assisting in the preparation and filing of Fund tax
returns;
(x) assisting, coordinating and organizing meetings of
the board of managers of the Fund (the "Board") and
meetings of Members as may be called by the Board
from time to time;
(xi) preparing materials and reports for use in connection
with meetings of the Board;
(xii) maintaining and preserving those books and records of
the Fund not otherwise required to be maintained by
the Fund's other administrator or custodian;
(xiii) reviewing and arranging for payment of the expenses
of the Fund;
(xiv) assisting the Fund in conducting periodic repurchases
of interests in the Fund ("Units"); and
(xv) such other services that the Fund and Administrator
shall agree to from time to time.
(b) The Administrator is authorized to utilize the services of its
affiliates and agents and their respective officers and employees in providing
any of the services required to be provided by the Administrator under this
Agreement.
2. THE ADMINISTRATOR FEE; REIMBURSEMENT OF EXPENSES.
(a) In consideration for the provision by the Administrator of its
services under this Agreement, the Fund will pay the Administrator a quarterly
fee computed at the annual rate of 0.10% of the aggregate value of outstanding
Units determined as of the last day of each month (the "Administrator Fee"),
before repurchases of Units. The Administrator Fee shall be paid promptly after
the end of each quarter.
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(b) The Administrator is responsible for bearing 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 OF THE ADMINISTRATOR.
To the extent consistent with applicable law, the Administrator shall
not be liable for any loss sustained by reason of good faith errors or omissions
of the Administrator or any affiliate of the Administrator, or their respective
directors, officers or employees, in connection with any matters to which this
Agreement relates; provided, however, that nothing in this Agreement shall be
deemed to protect the Administrator from willful misfeasance, bad faith or gross
negligence in the performance of its duties, or reckless disregard of its
obligations and duties under this Agreement.
4. LIABILITY OF THE MANAGERS AND MEMBERS.
The Administrator understands and agrees that the obligations of the
Fund under this Agreement are not binding upon any Member or person serving on
the Board (a "Manager") of the Fund personally, but bind only the Fund and the
Fund's property; the Administrator represents that it has notice of the
provisions of the Limited Liability Company Agreement of the Fund disclaiming
Member and Manager liability for acts and obligations of the Fund.
5. DURATION.
This Agreement will take effect on the date first set forth above.
Unless earlier terminated pursuant to paragraph 6 or 7 hereof, this Agreement
shall remain in effect for a period of two (2) years from such date and
thereafter from year to year, so long as such continuance shall be approved at
least annually (a) either by the Board or by a vote of a majority of the
outstanding voting units (as defined in the Investment Company Act of 1940, as
amended (the "1940 Act") of the Fund, and (b) in either event by the vote of a
majority of the Board Managers who are not parties to this Agreement or
"interested persons" (the "Independent Managers") (as defined in the 1940 Act,
and the rules thereunder), of any such party, cast in person at a meeting called
for the purpose of voting on such approval.
6. ASSIGNMENT OR AMENDMENT.
Any amendment to this Agreement shall be in writing and shall be
subject to the approval of the Board, including the vote of a majority of the
Independent Managers. This Agreement shall automatically and immediately
terminate in the event of its "assignment," as defined in the 1940 Act and the
rules thereunder.
7. TERMINATION.
This Agreement may be terminated (i) by the Administrator at any time
without penalty upon sixty (60) 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 (60) days' written notice to the Administrator (which notice may be waived
by the Administrator).
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8. CERTAIN RECORDS.
The Administrator will maintain certain records in connection with its
duties pursuant to this Agreement. Any records required to be maintained and
preserved pursuant to Rules 31a-1 and 31a-2 under the 1940 Act that are prepared
or maintained by the Administrator on behalf of the Fund shall be prepared and
maintained at the expense of the Administrator, but shall be the property of the
Fund and will be made available to or surrendered promptly to the Fund upon its
request.
In case of any request or demand for the inspection of such records by
another party, the Administrator shall notify the Fund and follow the Fund's
instructions as to permitting or refusing such inspection; provided that the
Administrator may exhibit such records to any person in any case where it is
advised by its counsel that it may be held liable for failure to do so, unless
(in cases involving potential exposure only to civil liability) the Fund has
agreed to indemnify the Administrator against such liability.
9. 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 1940 Act
shall be resolved by reference to such term or provision of the 1940 Act and to
interpretations thereof, if any, by the United States. In addition, where the
effect of a requirement of the 1940 Act reflected in any provision of this
Agreement is revised by rule, regulation or order of the SEC, such provision
shall be deemed to incorporate the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
CSFB ALTERNATIVE CAPITAL, INC
By: /s/ Xxxxx X. Xxx
----------------
Name: Xxxxx X. Xxx
Title: Managing Director
CSFB ALTERNATIVE CAPITAL RELATIVE VALUE
FUND, LLC
By: /s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Title: Secretary
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