DISTRIBUTOR'S AGREEMENT
AGREEMENT dated [_________, 2008] between BNY/Ivy Multi-Strategy Hedge Fund
LLC (the "Fund"), a Delaware limited liability company having its principal
place of business at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and MBSC
Securities Corporation (the "Distributor"), having its principal place of
business at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, the Fund is registered as a closed-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, it is intended that the Distributor act as a co-distributor of
limited liability company interests in the Fund ("Interests");
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein set forth, the parties agree as follows:
1. SERVICES AS DISTRIBUTOR
1.1. The Distributor will act as agent of the Fund for the distribution of
the Interests covered by the registration statement and prospectus of the Fund
then in effect under the Securities Act of 1933, as amended (the "Securities
Act"). As used in this Agreement, the term "registration statement" shall mean
the registration statement and any amendments thereto then in effect, including
Part A (the prospectus), Part B (the statement of additional information) and
Part C of such registration statement, as filed on Form N-2 or any successor
form thereto with the Securities and Exchange Commission the ("Commission"). The
term "prospectus" shall mean the then-current prospectus and statement of
additional information used by the Fund, in accordance with the rules of the
Commission, for delivery to members and prospective members of the Fund (the
"Members") after the effective dates of the above referenced registration
statements together with any amendments and supplements thereto.
1.2. It is contemplated that the Distributor will retain securities dealers
and financial institutions to act as selling agents in connection with the
offering of Interests (each of the foregoing a "Selling Agent") and will enter
into selling agreements with such Selling Agents. The Distributor shall engage
in, and/or may authorize Selling Agents to perform activities which it deems
reasonable and which are primarily intended to result in the sale of Interests.
1.3. The Distributor agrees that it will not make offers or sales of
Interests except in the manner set forth in the prospectus. The Fund has
established procedures that are to be followed in connection with the offer and
sale of Interests, and the Distributor agrees not to make offers or sales of any
Interests, and agrees to require all Selling Agents not to make any such offers
or sales, except in compliance with such
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procedures as have been provided to the Distributor in writing. In this regard,
the Distributor agrees that it will, and shall require Selling Agents to agree
that they will:
(a) not sell Interests to any one investor for less than the minimum
amount as may be specified in the prospectus or as the Fund shall
otherwise advise the Distributor;
(b) not offer or sell Interests in any state or jurisdiction, or to any
prospective investor located in any state or jurisdiction, where
Interests have not been registered or qualified for offer and sale
under applicable state securities laws unless Interests are exempt
from the registration or qualification requirements of such laws;
(c) sell Interests only to persons who are "qualified clients," as that
term is defined by Rule 205-3 under the Investment Advisers Act of
1940, as amended, and who meet such other eligibility requirements as
may be imposed by the Fund and set forth in the prospectus;
(d) make no representations concerning Interests other than those
contained in the Fund's prospectus or in any promotional materials or
sales literature furnished to the Distributor by the Fund; and
(e) take appropriate verification measures to ensure any offers or sales
of Interests are in compliance with all applicable laws and
regulations concerning foreign exchange controls and money laundering.
1.4. The Fund understands that the Distributor is now and may in the future
be the distributor of ownership interests of other investment entities
(together, "Other Entities"), including Other Entities having investment
objectives similar to those of the Fund or that otherwise compete with the Fund.
The Fund further understands the investors and potential investors in the Fund
may invest in ownership interests of such Other Entities. The Fund agrees that
the Distributor's duties to such Other Entities shall not be deemed in conflict
with its duties to the Fund under this Agreement.
1.5. The Distributor understands that the Fund has entered into a
distribution agreement with BNY Xxxxxxxx Distributors, Inc. ("BNY Xxxxxxxx") and
that the Distributor will not be the exclusive distributor of Interests.
1.6. In its capacity as a distributor of the Interests, all activities of
the Distributor and its directors, officers, agents, and employees shall comply
with all applicable laws, rules and regulations, including, without limitation,
the 1940 Act and the Securities Exchange Act of 1934 (the "1934 Act") and all
rules and regulations promulgated by the Commission thereunder and all rules and
regulations adopted by any relevant securities association registered under the
1934 Act. The Distributor agrees that
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it will be responsible for the proper instruction and training of all sales
personnel it employs.
1.7. The Fund will ensure that its transfer agent issues confirmations of
all accepted purchase orders and other transactions in Interests. The
Distributor will require Selling Agents to forward such confirmations to the
applicable Member promptly after receipt from the transfer agent. The
Distributor shall transmit, and shall require all Selling Agents to transmit,
promptly after receipt from an investor full subscription amounts payable in
connection with each order for the purchase of Interests by such investor to the
Fund's escrow agent in accordance with delivery instructions provided in writing
by the Fund.
1.8. To the extent the Distributor makes a recommendation to its customers
regarding a transaction in Interests, the Distributor agrees that it has the
responsibility to fulfill its obligations under the NASD Conduct Rules and to
determine the suitability of any Interests as investments for its customers, and
that the Fund has no responsibility for such determination.
1.9. The Fund will ensure that its administrator, The Bank of New York (the
"Administrator"), takes such steps as may be necessary and feasible to qualify
Interests for sale in states, territories or dependencies of the United States,
the District of Columbia, and the Commonwealth of Puerto Rico, in accordance
with the laws thereof, and to renew or extend any such qualification; provided,
however, that the Administrator shall not be required to qualify Interests or to
maintain the qualification of Interests in any jurisdiction where it shall deem
such qualification disadvantageous to the Fund.
1.10. Whenever in their judgment such action is warranted by unusual
market, economic or political conditions or by abnormal circumstances of any
kind, the Fund's officers may upon reasonable notice instruct the Distributor to
decline to accept any orders for or make any sales of Interests until such time
as the Fund's officers deem it advisable to accept such orders and to make such
sales.
1.11. The Fund agrees to notify the Distributor in writing, from time to
time, of the amount of registered Interests available to be sold. The Fund
represents and warrants to the Distributor that all such Interests are
registered with the Commission and that a registration statement shall be
effective at the time such Interests are specified by the Fund as available for
sale.
1.12. The Fund will pay all costs and expenses in connection with the
registration of Interests under the Securities Act and all expenses in
connection with the provision of facilities for the issue and transfer of
Interests and for supplying information, prices and other data to be furnished
by the Fund hereunder, and all expenses in connection with the preparation and
printing of the Fund's prospectuses. The Fund agrees to direct the Administrator
to execute any and all documents and to furnish any and all information and
otherwise to take all actions that may be reasonably necessary in
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connection with the qualification of Interests for sale in such jurisdictions as
the Distributor may designate. The Fund shall also direct the Administrator to
provide the Distributor with a list of all states and jurisdictions where
Interests have been qualified for offer and sale under applicable state
securities laws.
1.13. The Fund shall furnish from time to time, for use in connection with
the sale of Interests, such information with respect to the Fund and Interests
as the Distributor may reasonably request; and the Fund warrants that the
statements contained in any such information will, when made, be true and
correct and fairly show or represent what they purport to show or represent.
Thereafter, the Fund shall notify the Distributor in writing immediately upon
the happening of any event or change of circumstances that causes any such
information to be incorrect or misleading. The Fund shall also furnish the
Distributor upon request with (i) unaudited semi-annual reports and audited
annual reports of the Fund's books and accounts prepared by the Fund, (ii)
copies of any document or information filed with the Commission, (iii) copies of
the Fund's privacy policy and anti-money laundering policy and any amendments or
changes thereto, and (iv) from time to time such additional information
regarding the financial condition of the Fund as the Distributor may reasonably
request.
1.14. The Fund authorizes the Distributor and Selling Agents to use any
prospectus in the form furnished from time to time in connection with the sale
of Interests. The Fund represents and warrants to the Distributor that, with
respect to Interests, all registration statements and prospectuses filed by the
Fund with the Commission under the Securities Act have been carefully prepared
in conformity with the requirements of said Act and rules and regulations of the
Commission thereunder. The registration statement and prospectus contain all
statements required to be stated therein in conformity with said Act and the
rules and regulations of said Act and the rules and regulations of said
Commission and all statements of fact contained in any such registration
statement and prospectus are true and correct. Furthermore, neither any
registration statement nor any prospectus contains an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading to a purchaser of
Interests. The Fund shall from time to time make such amendments to any
registration statement and such supplements to any prospectus as may, in light
of future developments and in the opinion of the Fund's counsel, be necessary or
advisable. If the Fund shall not propose an amendment and/or supplement within
fifteen days after receipt by the Fund of a written request from the Distributor
to do so, the Distributor may, at its option, terminate this Agreement. In such
case, the Distributor will be held harmless from, and indemnified by the Fund
for, any liability or loss resulting from the failure to implement such
amendment or supplement. The Fund shall not file any amendment to any
registration statement or supplement to any prospectus without giving the
Distributor reasonable notice thereof and an opportunity to review in advance;
provided, however, that nothing contained in this Agreement shall in any way
limit the Fund's right to file at any time such amendments to any registration
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statement and/or supplements to any prospectus, of whatever character, as the
Fund may deem advisable, such right being in all respects absolute and
unconditional.
1.15. No Interests shall be offered by either the Distributor or the Fund
under any of the provisions of this Agreement and no orders for the purchase or
sale of Interests hereunder shall be accepted by the Fund if and so long as the
effectiveness of the registration statement then in effect or any necessary
amendments thereto shall be suspended under any of the provisions of the
Securities Act or if and so long as a current prospectus as required by Section
10(b)(2) of said Act is not on file with the Commission; provided, however, that
nothing contained in this Section 1.15 shall in any way restrict or have an
application to or bearing upon the Fund's obligation to repurchase Interests
from a Member in accordance with the provisions of the Fund's prospectus or
limited liability company agreement.
1.16. The Fund agrees to advise the Distributor as soon as reasonably
practical by a notice in writing delivered to the Distributor:
(a) of any request by the Commission for amendments to the registration
statement or prospectus or for additional information;
(b) in the event of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or
prospectus or the initiation by service of process on the Fund of any
proceeding for that purpose;
(c) of the happening of any event that makes untrue any statement of a
material fact made in the registration statement or prospectus or
which requires the making of a change in such registration statement
or prospectus in order to make the statements therein not misleading;
and
(d) of all action of the Commission with respect to any amendment to any
registration statement or prospectus which may from time to time be
filed with the Commission.
1.17. The Distributor agrees on behalf of itself and its directors,
officers and employees to treat confidentially and as proprietary information of
the Fund all records and other information relative to the Fund and its prior,
present or potential Members, and not to use such records and information for
any purpose other than performance of its responsibilities and duties hereunder,
except (a) after prior notification to the Fund when the Distributor has been
requested to divulge such information by duly constituted authorities, (b) where
the Distributor may be exposed to civil or criminal liability for failure to
comply, or (c) when so requested by the Fund.
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2. INDEMNIFICATION; CONTINUATION OF REPRESENTATIONS AND WARRANTIES
2.1. The Fund agrees to indemnify, defend and hold the Distributor, its
directors, officers and employees, and any person who controls the Distributor
within the meaning of Section 15 of the Securities Act (the Distributor and all
such parties, the "Distributor Parties"), free and harmless from and against any
and all claims, demands, liabilities and expenses (including the cost of
investigating or defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) (collectively "Losses") which the
Distributor Parties may incur (a) as the result of acting as a distributor of
Interests or arising out of its actions in accordance with this Agreement; or
(b) under the Securities Act or under common law or otherwise, arising out of or
based upon (i) any untrue statement, or alleged untrue statement, of a material
fact contained in any registration statement or any prospectus, (ii) any
omission, or alleged omission, to state a material fact required to be stated in
any registration statement or in any prospectus or necessary to make the
statements in either of such documents not misleading or (iii) any Fund-related
advertisement or sales literature that is not in compliance with applicable
laws, rules or regulations (including, but not limited to the NASD Conduct
Rules). The Fund's agreement to indemnify the Distributor Parties shall not be
deemed to cover any Losses (x) arising out of any statements or representations
as are contained in any prospectus, advertisement or sales literature and in
such financial and other statements as are furnished in writing to the Fund by
the Distributor, or (y) arising out of or based upon any omission to state a
material fact in such information furnished by the Distributor which is required
to be stated or necessary to make the information not misleading; and further
provided that the Fund's agreement to indemnify the Distributor and the Fund's
representations and warranties herein shall not be deemed to cover any liability
to the Fund or its Members to which the Distributor would otherwise be subject
due to its willful misfeasance, bad faith or gross negligence in the performance
of its duties, by reason of the Distributor's reckless disregard of its
obligations and duties under this Agreement, or by the Distributor's failure to
comply with any laws, rules or regulations applicable to it in connection with
its distribution of the Interests.
In the event of a formal legal action, the Fund's agreement to indemnify
the Distributor Parties is expressly conditioned upon the Fund being provided
with written notice of an action brought against the Distributor Parties
identifying the person against whom such action is brought, promptly following
receipt of service of the summons or other first legal process, provided that
any failure to promptly notify the Fund will not relieve the Fund of its duty to
indemnify pursuant to this Section 2.1 unless the Fund is materially prejudiced
as a result, and provided further, that failure to notify the Fund shall not, in
any event, relieve the Fund from any liability the Fund may have to the person
against whom such action is brought, or to any other person, by reason of any
such untrue, or alleged untrue, statement or omission, or alleged omission,
otherwise than in regard to the Fund's indemnity obligations under this Section
2.1.
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The Fund will be entitled to assume the defense of any action as to which a
claim for indemnification may be made under this Section 2.1 if such defense
shall be conducted by counsel of good standing approved by the Distributor,
which approval shall not be unreasonably withheld. In the event the Fund elects
to assume the defense of any such action in accordance with the foregoing, the
defendant or defendants in such suit shall bear the fees and expenses of any
additional counsel retained by any of them, but in any case where the Fund does
not elect to assume the defense of any such action or in the event the
Distributor reasonably withholds approval of counsel chosen by the Fund, the
Fund will reimburse the Distributor Parties named as defendant or defendants in
such action, for the fees and expenses of any counsel retained by the
Distributor or them.
This Agreement of indemnity will inure exclusively to the benefit of the
Distributor Parties, their respective estates, and their respective successors.
The Fund agrees promptly to notify the Distributor of the commencement of any
litigation of proceedings against the Fund or any of its officers or members of
its Board of Managers (each, a "Manager" and collectively, the "Board") which
relates, directly or indirectly, to the issue and sale of any Interests or which
may otherwise form the basis of an obligation for the Fund to indemnify
hereunder.
2.2. The Distributor agrees to indemnify, defend and hold the Fund, its
officers and Managers, and any person who controls the Fund within the meaning
of Section 15 of the Securities Act (the Fund and all such parties, the "Fund
Parties") free and harmless from and against any and all Losses which the Fund
Parties may incur under the Securities Act or under common law or otherwise,
arising out of or based upon:
(a) any breach of any representation, warranty or covenant made by the
Distributor herein; or
(b) any failure by the Distributor to perform its obligations as set forth
herein; or
(c) any untrue statement of a material fact contained in the information
furnished in writing by the Distributor to the Fund for use in any
registration statement or any prospectus, or used in the answers to
any of the items of any registration statement or in the corresponding
statements made in the prospectus, or arising out of or based upon any
omission, or alleged omission, to state a material fact in connection
with such information furnished in writing by the Distributor to the
Fund and required to be stated in such answers or necessary to make
such information not misleading.
The Distributor's agreement to indemnify the Fund Parties is expressly
conditioned upon the Distributor being provided with written notice of an action
brought against the Fund Parties and identifying the person against whom such
action is brought promptly following the indemnified person's receipt of service
of the summons or other
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legal process, provided that any failure to promptly notify the Distributor will
not relieve the Distributor of its duty to indemnify pursuant to this Section
2.2 unless the Distributor is materially prejudiced as a result.
The Distributor will be entitled to assume the defense of any such action
if such defense shall be conducted by counsel of good standing approved by the
Fund, which approval shall not be unreasonably withheld. In the event any such
Loss is not based solely on an alleged misstatement or omission on the
Distributor's part, the relevant Fund Parties shall have the right to
participate in the defense, and the Distributor shall have the right of first
control thereof. In the event the Distributor elects to assume the defense of
any action in accordance with the foregoing, the Fund Parties shall bear the
fees and expenses of any additional counsel retained by any of them, but in any
case where the Distributor does not elect to assume the defense of any such
action, the Distributor will reimburse the Fund Parties named as defendant or
defendants in such suit for the reasonable fees and expenses of any counsel
retained by the Fund Parties to the extent related to a Loss covered under this
Section 2.2. The Distributor's agreement to indemnify the Fund Parties shall not
be deemed to cover any Losses caused by the Fund Parties' willful misfeasance,
bad faith or gross negligence in the performance of their duties, by reason of
the Fund Parties' reckless disregard of their obligations and duties under this
Agreement, or by the Fund Parties' failure to comply with any laws, rules or
regulations applicable to them.
2.3. The indemnification agreements contained in this Section 2 and the
Fund's representations and warranties in this Agreement shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of the Distributor, its directors, officers and employees, or any
controlling person, and shall survive the delivery of any Interests. The Fund's
representations and warranties contained in this Agreement shall continue
throughout the term of this Agreement and be deemed to be of a continuing
nature, and, if relevant, applicable to all registration statements and
prospectuses filed or used hereafter and all Interests distributed hereunder.
2.4. It is expressly agreed that the obligations of the Fund hereunder
shall not be binding upon any of the Managers, Members, nominees, officers,
agents or employees of the Fund personally, but shall bind only the Fund and the
property of the Fund. The execution and delivery of this Agreement have been
authorized by the Managers, and this Agreement has been signed and delivered by
an authorized officer of the Fund, acting in such capacity.
3. FEES
The Fund shall not pay a fee to the Distributor for services provided by
the Distributor under this Agreement. The Fund and the Distributor agree and
acknowledge that, as compensation for selling Interests, BNY Investment
Advisors, the Fund's investment adviser (the "Adviser") and a division of The
Bank of New York (the "Bank"), or an affiliate of the Bank, may make payments to
the Distributor or to Selling
8
Agents, from its own resources in an amount up to 0.90% per annum of the
aggregate value of Interests held by Members that are customers of those Selling
Agents. The Fund and the Distributor further agree and acknowledge that the
Distributor may pay compensation to Selling Agents out of these payments and may
retain such portion of such payments that is not paid to Selling Agents. In
accordance with applicable NASD Conduct Rules, payments by the Fund and the Bank
(or by any affiliate of the Bank) to the Distributor, and any placement fees
received by the Distributor in connection with the sale of Interests (as
contemplated by Section 5.3 of this Agreement), shall not exceed such
limitations on compensation as is specified by the NASD Conduct Rules or by the
Financial Industry Regulatory Authority, Inc. ("FINRA," formerly, the National
Association of Securities Dealers).
4. STATUS AS A FINRA MEMBER
The Distributor agrees to inform the Fund promptly of any pending or
threatened action or proceeding by FINRA bearing on the Distributor's membership
with FINRA and of any suspension or termination of such membership. The
Distributor further agrees to maintain all records required by applicable laws
or that are otherwise reasonably requested by the Fund in the event the
Distributor's status as a member of FINRA or the Securities Investor Protection
Corporation changes. The Distributor recognizes that it will be treated as a
"non-member of the Association," as defined by Rule 2420 of the NASD Conduct
Rules, during the period of any suspension of its membership with FINRA.
Accordingly, no payments required by FINRA regulations to be paid solely to a
registered broker or dealer shall be paid by the Fund to the Distributor while
it is suspended from FINRA. Further, any termination of the Distributor's FINRA
membership will automatically terminate the Agreement without notice. In the
event that the Agreement is terminated as a result of the Distributor ceasing to
be a member of FINRA, or for any other reason as permitted by the Agreement, the
Distributor agrees to work cooperatively with the Fund to effect an orderly
transition of customer assets if customer Interests are redeemed or
registrations transferred. The Distributor further agrees to notify the Fund
immediately in the event of its violation of any applicable federal or state
law, rule, regulation, requirement or condition arising out of or in connection
with this Agreement, or which may otherwise affect in any material way the
Distributor's ability to act as a distributor in accordance with the terms of
this Agreement.
5. OFFERING PRICE; SALE AND PAYMENT
5.1. The minimum initial and additional investment amounts in the Fund
shall be those amounts as set forth in the Fund's prospectus unless the Board
approves different amounts and instructs the Distributor in writing to accept
the different minimum initial and/or additional investment amounts.
5.2. The net asset value of Interests shall be determined in accordance
with the Limited Liability Company Agreement and the prospectus of the Fund.
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5.3. With respect to sales of Interests to investors, the Distributor and
any Selling Agent may impose a placement fee, which fee shall be payable to the
Distributor or Selling Agent, as applicable, by investors purchasing Interests
(a "Placement Fee"), in such amount (and with such reductions and waivers) as
may be determined by the Distributor or the Selling Agent not exceeding 3
percent of the amount of any investment in Interests. The Distributor and any
Selling Agent imposing a Placement Fee shall disclose such fee and available
reductions and waivers thereof in writing to investors subject thereto prior to
the acceptance of orders to purchase Interests from such investors.
5.4. The receipt by the Distributor or any Selling Agent of any Placement
Fee, and the receipt by them of any other compensation with respect to
Interests, shall be subject to such limitations as may be established by FINRA
with respect to the offering of Interests or as may be imposed by the NASD
Conduct Rules.
6. TERM, DURATION AND TERMINATION
This Agreement shall become effective as of the date first written above
(the "Effective Date") and, unless sooner terminated as provided herein, shall
continue for a two-year period following the date of its execution, as set forth
below. Thereafter, if not terminated, this Agreement shall continue
automatically for successive one-year terms, provided that such continuance is
specifically approved at least annually by the vote of a "majority of the
outstanding voting securities of the Fund," as defined by the 1940 Act and the
rules thereunder, or by the Board; and provided that in either event such
continuance is also approved by a majority of the Managers who are not parties
to this Agreement or "interested persons," as defined by the 1940 Act, of any
such party (the "Independent Managers"), in each case by vote cast in person at
a meeting called for the purpose of voting on such approval. The Fund may at any
time, without payment of any penalty, terminate this Agreement upon sixty days
prior written notice to the Distributor, either by majority vote of the Board or
by the vote of a "majority of the outstanding voting securities of the Fund," as
defined by the 1940 Act and the rules thereunder. The Distributor may at any
time, without payment of penalty, terminate this Agreement upon sixty days prior
written notice to the Fund, or immediately if required by applicable law. This
Agreement shall automatically terminate in the event of its assignment (to the
extent required by the 1940 Act and the rules thereunder) unless such automatic
termination shall be prevented by an exemptive order of the Commission.
7. PRIVACY
Notwithstanding any provision herein to the contrary, each party hereto
agrees that any Nonpublic Personal Information, as defined under Rule 3(t) of
Regulation S-P ("Regulation S-P"), promulgated under the Xxxxx-Xxxxx-Xxxxxx Act
(the "Privacy Act"), disclosed by a party hereunder is for the specific purpose
of permitting the other party to perform the services set forth in this
Agreement. Each party agrees that, with respect to such information, it will
comply with Regulation S-P and the Privacy Act and that it will not disclose any
Nonpublic Personal Information received in connection with this
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Agreement to any other party, except to the extent as necessary to carry out the
services set forth in this Agreement or as otherwise permitted by Regulation S-P
or the Privacy Act. The Fund represents to the Distributor that it has adopted a
statement of its privacy policies and practices as required by Regulation S-P
and agrees to provide the Distributor with a copy of that statement annually.
The Distributor shall have in place and maintain physical, electronic and
procedural safeguards reasonably designed to protect the security,
confidentiality and integrity of, and to prevent unauthorized access to or use
of records and information relating to consumers of the Fund.
8. NOTICES
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such notice
at the following address: if to the Fund, to it at Xxx Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: President; and if to the Distributor, to it at 000
Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Legal Department,
or at such other address as either party may from time to time specify in
writing to the other party pursuant to this Section.
9. GENERAL PROVISIONS
9.1. No provision of this Agreement may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which an enforcement of the change, waiver, discharge or termination is
sought.
9.2. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York and the provisions of the 1940 Act. To the
extent the law of the State of New York, or any of the provisions herein,
conflict with the provisions of the 1940 Act, the latter shall control.
9.3. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule, or otherwise, the remainder of this Agreement
shall not be affected thereby. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors.
9.4. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated on the date set forth below.
BNY/IVY MULTI-STRATEGY HEDGE FUND LLC
By:
------------------------------------
Name:
Title:
Dated:
---------------------------------
MBSC SECURITIES CORPORATION
By:
------------------------------------
Name:
Title:
Dated:
---------------------------------
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