Exhibit 99(k)(ii)
SERVICES AGREEMENT
AGREEMENT made as of ______________________, by and between each entity
listed on Exhibit A hereto (each, a "Fund"; collectively, the "Funds"), and The
Bank of New York, a New York banking organization ("BNY").
W I T N E S S E T H :
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WHEREAS, each Fund is an investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, each Fund desires to retain BNY to provide for the Funds the
services described herein, and BNY is willing to provide such services, all as
more fully set forth below;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereby agree as follows:
1. APPOINTMENT.
Each Fund hereby appoints BNY as its agent for the term of this Agreement
to perform the services described herein. BNY hereby accepts such appointment
and agrees to perform the duties hereinafter set forth.
2. REPRESENTATIONS AND WARRANTIES.
Each Fund hereby represents and warrants to BNY, which representations
and warranties shall be deemed to be continuing, that:
(a) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business as
now conducted, to enter into this Agreement and to perform its obligations
hereunder;
(b) This Agreement has been duly authorized, executed and
delivered by the Fund in accordance with all requisite action and constitutes a
valid and legally binding obligation of the Fund, enforceable in accordance with
its terms;
(c) It is conducting its business in compliance with all
applicable laws and regulations, both state and Federal, and has obtained all
regulatory licenses, approvals and consents necessary to carry on its business
as now conducted; there is no statute, regulation, rule, order or judgment
binding on it and no provision of its charter or by-laws, nor of any mortgage,
indenture, credit agreement or other contract binding on it or affecting its
property which would prohibit its execution or performance of this Agreement;
and
(d) To the extent the performance of any services described in
Schedule I attached hereto by BNY in accordance with the then effective
Prospectus (as hereinafter defined) for the Fund would violate any applicable
laws or regulations, the Fund shall immediately so notify BNY in writing and
thereafter shall either furnish BNY with the appropriate values of securities,
net asset value or other computation, as the case may be, or, subject to the
prior approval of BNY, instruct BNY in writing to value securities and/or
compute net asset value or other computations in a manner the Fund specifies in
writing, and either the furnishing of such values or the giving of such
instructions shall constitute a representation by the Fund that the same is
consistent with all applicable laws and regulations and with its Prospectus.
3. DELIVERY OF DOCUMENTS.
(a) Each Fund will promptly deliver to BNY true and correct
copies of each of the following documents as currently in effect and will
promptly deliver to it all future amendments and supplements thereto, if any:
(i) The Fund's Limited Liability Company Agreement, and
all amendments thereto;
(ii) Evidence of the Fund authorizing the execution,
delivery and performance of this Agreement by the Fund;
(iii) The Fund's registration statement most recently
filed with the Securities and Exchange Commission (the "SEC") relating to the
limited liability company interests ("Interests") of the Fund (the "Registration
Statement");
(iv) The Fund's Notification of Registration under the
1940 Act on Form N-8A filed with the SEC; and
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(v) The Fund's Prospectus and Statement of Additional
Information (collectively, the "Prospectus").
(b) Each Limited Liability Company Agreement shall be certified
by the Secretary of State (or other appropriate official) of the state of
organization, and if required by law also to be filed with a county or other
officer or official body, a certificate of such filing shall be filed with a
certified copy submitted to BNY. Each copy of the Registration Statement and
Prospectus, and all amendments thereto, and copies of resolutions of the board
of managers of a Fund (a "Board"), shall be certified by a properly authorized
officer of the Fund.
(c) It shall be the sole responsibility of each Fund to deliver
to BNY its currently effective Prospectus and BNY shall not be deemed to have
notice of any information contained in such Prospectus until it is actually
received by BNY.
4. DUTIES AND OBLIGATIONS OF BNY.
(a) Subject to the direction and control of each Fund's Board
and the provisions and terms and conditions of this Agreement and of Schedule I,
BNY shall provide to each Fund services set forth on Schedule I attached hereto
(the "Services").
(b) In performing hereunder, BNY shall provide, at its expense,
office space, facilities, equipment and personnel.
(c) BNY shall not provide any services relating to the
management, investment advisory or sub-advisory functions of any Fund,
distribution of Interests of any Fund, maintenance of any Fund's financial
records or other services normally performed by the Funds' respective counsel or
independent auditors.
(d) Upon receipt of a Fund's prior written consent (which shall
not be unreasonably withheld), BNY may delegate any of its duties and
obligations hereunder to any delegee or agent whenever and on such terms and
conditions as it deems necessary or appropriate. Notwithstanding the foregoing,
no Fund consent shall be required for any such delegation to any other
subsidiary of The Bank of New York Company, Inc. (each a "BNY Affiliate"). BNY
shall not be liable to any Fund for any loss or damage arising out of, or in
connection with, the actions or omissions to act of any delegee or agent other
than a BNY
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Affiliate utilized hereunder so long as BNY acts in good faith and without
negligence or wilful misconduct in the selection of such delegee or agent. BNY
shall be liable for the acts or omissions to act of a BNY Affiliate to the same
extent it would be liable under the terms hereof had it committed the act or
omission to act.
(e) Each Fund shall cause its officers, advisors, sponsor,
distributor, legal counsel, independent accountants, current administrator (if
any) and transfer agent to cooperate with BNY and to provide BNY, upon request,
with such information, documents and advice relating to such Fund as is within
the possession or knowledge of such persons, in order to enable BNY to perform
its duties hereunder. In connection with its duties hereunder, BNY shall be
entitled to rely, and shall be held harmless by each Fund when acting in
reliance, upon the instructions, advice or any documents relating to such Fund
provided to BNY by any of the aforementioned persons. BNY shall not be liable
for any loss, damage or expense resulting from or arising out of the failure of
the Fund to cause any information, documents or advice to be provided to BNY as
provided herein. All fees or costs charged by such persons shall be borne by the
appropriate Fund.
(f) Nothing in this Agreement shall limit or restrict BNY, any
affiliate of BNY or any officer or employee thereof from acting for or with any
third parties, and providing services similar or identical to same or all of the
services provided hereunder.
(g) Each Fund shall furnish BNY with any and all instructions,
explanations, information, specifications and documentation deemed necessary by
BNY in the performance of its duties hereunder, including, without limitation,
the amounts or written formula for calculating the amounts and times of accrual
of Fund liabilities and expenses. BNY shall not be required to include as Fund
liabilities and expenses, nor as a reduction of net asset value, any accrual for
any Federal, state, or foreign income taxes unless the Fund shall have specified
to BNY the precise amount of the same to be included in liabilities and expenses
or used to reduce net asset value. Each Fund shall also furnish BNY with bid,
offer, or market values of Securities if BNY notifies such Fund that same are
not available to BNY from a security pricing or similar service utilized, or
subscribed to, by BNY which BNY in its judgment deems reliable at the time such
information is required for calculations hereunder. At any time and from time to
time, the Fund
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also may furnish BNY with bid, offer, or market values of Securities and
instruct BNY to use such information in its calculations hereunder. BNY shall at
no time be required or obligated to commence or maintain any utilization of, or
subscriptions to, any securities pricing or similar service.
(h) To the extent the valuation of securities or computation of
a net asset value as specified in the Fund's then currently effective Prospectus
is at any time inconsistent with any applicable laws or regulations, the Fund
shall immediately so notify BNY in writing and thereafter shall either furnish
BNY at all appropriate times with the values of such securities and each net
asset value, or subject to the prior approval of BNY, instruct BNY in writing to
value securities and compute net asset value in a manner which the Fund then
represents in writing to be consistent with all applicable laws and regulations.
The Fund may also from time to time, subject to the prior approval of BNY,
instruct BNY in writing to compute the value of the securities or a net asset
value in a manner other than as specified in this Agreement. By giving such
instruction, the Fund shall be deemed to have represented that such instruction
is consistent with all applicable laws and regulations and the then currently
effective Prospectus of the Fund. The Fund shall have sole responsibility for
determining the method of valuation of securities and the method of computing
net asset value.
(i) BNY may apply to an officer of any Fund for written
instructions with respect to any matter arising in connection with BNY's
performance hereunder for such Fund, and BNY shall not be liable for any action
taken or omitted to be taken by it in good faith in accordance with such
instructions. Such application for instructions may, at the option of BNY, set
forth in writing any action proposed to be taken or omitted to be taken by BNY
with respect to its duties or obligations under this Agreement and the date on
and/or after which such action shall be taken, and BNY shall not be liable for
any action taken or omitted to be taken in accordance with a proposal included
in any such application on or after the date specified therein unless, prior to
taking or omitting to take any such action, BNY has received written
instructions in response to such application specifying the action to be taken
or omitted.
(j) BNY may consult with counsel to the appropriate Fund or its
own counsel, at such Fund's expense, and shall be fully protected with respect
to anything done or omitted by
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it in good faith in accordance with the advice or opinion of such counsel.
(k) BNY shall, as agent for each Fund, maintain and keep
current the books, accounts and other documents, if any, listed in Schedule I
hereto and made a part hereof, as such Schedule I may be amended from time to
time. Such books, accounts and other documents shall be made available upon
reasonable request for inspection by officers, employees and auditors of the
Fund during BNY's normal business hours, shall be preserved for period of five
(5) years, and shall not be destroyed without the prior consent of the Funds.
(l) All records maintained and preserved by BNY in hard copy
pursuant to this Agreement shall be and remain the property of such Fund and
shall be surrendered to such Fund promptly upon request in the form in which
such records have been maintained and preserved. Upon reasonable request of a
Fund and payment of the fee specified by BNY, BNY shall provide in hard copy or
on micro-film, whichever [AIS] shall elect, any records included in any such
delivery which are maintained by BNY on a computer disc, or are similarly
maintained, and such Fund shall reimburse BNY for its expenses of providing such
hard copy or micro-film.
(m) BNY shall have no duties or responsibilities whatsoever
except such duties and responsibilities as are specifically set forth in this
Agreement and Schedule I attached hereto, and no covenant or obligation shall be
implied against BNY in connection with this Agreement.
(n) BNY, in performing the services required of it under the
terms of this Agreement, shall be entitled to rely fully on the accuracy and
validity of any and all instructions, explanations, information, specifications
and documentation furnished to it by a Fund and shall have no duty or obligation
to review the accuracy, validity or propriety of such instructions,
explanations, information, specifications or documentation, including, without
limitation, evaluations of securities; the amounts or formula for calculating
the amounts and times of accrual of a Fund's liabilities and expenses; the
amounts receivable and the amounts payable on the sale or purchase of
Securities; and amounts receivable or amounts payable for the sale or redemption
of Fund shares effected by or on behalf of a Fund. In the event BNY's
computations hereunder rely, in whole or in part, upon information, including,
without limitation, bid, offer or market
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values of securities or other assets, or accruals of interest or earnings
thereon, from a pricing or similar service utilized, or subscribed to, by BNY
which BNY in its judgment deems reliable, BNY shall not be responsible for,
under any duty to inquire into, or deemed to make any assurances with respect
to, the accuracy or completeness of such information. Without limiting the
generality of the foregoing, BNY shall not be required to inquire into any
valuation of securities or other assets by a Fund or any third party described
in this (l) even though BNY in performing services similar to the services
provided pursuant to this Agreement for others may receive different valuations
of the same or different securities of the same issuers.
(o) BNY, in performing the services required of it under the
terms of this Agreement, shall not be responsible for determining whether any
interest accruable to a Fund is or will be actually paid, but will accrue such
interest until otherwise instructed by such Fund.
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(p) BNY agrees to treat, and to instruct any delegee or agent
to treat, as confidential information all accounting and customer information
and other business records of the Funds disclosed to BNY in connection with its
provision of services pursuant to the terms of the Agreement ("Confidential
Information") and shall not disclose nor authorize disclosure of Confidential
Information by BNY or any delegee to any other person, except either BNY or any
delegee may make disclosure to its respective regulators, examiners, internal
and external accounts, auditors, and counsel, or to any other person when
required by a court order or legal process, or whenever advised by its counsel
that it could be liable for a failure to make such disclosure. BNY shall
instruct employees, and instruct any delegee to instruct its employees, who may
be accorded access to such information of such obligations of confidentiality
and shall not use the Confidential Information for any purpose other than in
fulfillment of BNY's or such delegees obligations under this Agreement.
(q) Confidential Information shall not include any information
that (i) is or becomes public knowledge through no act or omission of the
receiving person, (ii) is publicly disclosed by its proprietor, and (iii) is
otherwise lawfully obtained from third parties after reasonable inquiry
regarding their authority to possess and disclose same, which is not otherwise
bound by a contractual or fiduciary obligation.
(r) BNY shall not be responsible for delays or errors which
occur by reason of circumstances beyond its control in the performance of its
duties under this Agreement, including, without limitation, labor difficulties
within or without BNY, mechanical breakdowns, flood or catastrophe, acts of God,
failures of transportation, interruptions, loss, or malfunctions of utilities,
communications or computer (hardware or software) services. Nor shall BNY be
responsible for delays or failures to supply the information or services
specified in this Agreement where such delays or failures are caused by the
failure of any person(s) other than BNY to supply any instructions,
explanations, information, specifications or documentation deemed necessary by
BNY in the performance of its duties under this Agreement.
5. ALLOCATION OF EXPENSES.
Except as otherwise provided herein, all costs and expenses arising or
incurred in
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connection with the performance of this Agreement shall be paid by the
appropriate Fund, including but not limited to, the management fee payable to
the Fund's investment adviser; the investor servicing fee payable to the Fund's
distributor; any taxes; investment-related expenses incurred by the Fund (E.G.,
fees and expenses charged by the Portfolio Managers and Portfolio Funds, costs
associated with organizing and operating Portfolio Accounts, placement fees,
interest on indebtedness, fees for data and software providers, research
expenses, professional fees (including, without limitation, expenses of
consultants and experts) relating to investments); fees and expenses for
accounting, custody and administrative services; the fees and expenses of Fund
counsel, any legal counsel retained to represent the members of the Board who
are not "interested persons," as defined by the Investment Company Act and the
rules thereunder, of the Fund and the Fund's independent auditors; costs
associated with the registration of the Fund, including the costs of compliance
with Federal and state laws; costs and expenses of holding meetings of the Board
and meetings of members of the Fund ("Members"), including reasonable travel and
out-of-pocket expenses of the members of the Board and any costs associated with
the preparation and dissemination of proxy materials; the costs of a fidelity
bond and any liability insurance obtained on behalf of the Fund or the Board;
costs of preparing, printing and distributing reports and other communications
to Members and such other expenses as may be approved by the Board.
6. STANDARD OF CARE; INDEMNIFICATION.
(a) Except as otherwise provided herein, BNY shall not be
liable for any costs, expenses, damages, liabilities or claims (including
attorneys' and accountants' fees) incurred by a Fund, except those costs,
expenses, damages, liabilities or claims arising out of BNY's own gross
negligence or wilful misconduct. In no event shall BNY be liable to any Fund or
any third party for special, indirect or consequential damages, or lost profits
or loss of business, arising under or in connection with this Agreement, even if
previously informed of the possibility of such damages and regardless of the
form of action. BNY shall not be liable for any loss, damage or expense,
including counsel fees and other costs and expenses of a defense against any
claim or liability, resulting from, arising out of, or in connection with its
performance hereunder, including its actions or omissions, the incompleteness or
inaccuracy of any specifications or other information furnished by the Fund, or
for delays caused by circumstances
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beyond BNY's control, unless such loss, damage or expense arises out of the
gross negligence or willful misconduct of BNY. Notwithstanding the foregoing or
any other provision contained herein, in no event shall BNY be liable for any
failure of BNY to note or advise of any noncompliance with any credit,
investment, or eligibility guideline or policy, even if BNY is monitoring the
same.
(b) Each Fund shall indemnify and hold harmless BNY from and
against any and all costs, expenses, damages, liabilities and claims (including
claims asserted by a Fund), and reasonable attorneys' and accountants' fees
relating thereto, which are sustained or incurred or which may be asserted
against BNY, by reason of or as a result of any action taken or omitted to be
taken by BNY in good faith hereunder or in reliance upon (i) any law, act,
regulation or interpretation of the same even though the same may thereafter
have been altered, changed, amended or repealed, (ii) such Fund's Registration
Statement or Prospectus, (iii) any instructions of an officer of such Fund, or
(iv) any opinion of legal counsel for such Fund or BNY, or arising out of
transactions or other activities of such Fund which occurred prior to the
commencement of this Agreement; PROVIDED, that no Fund shall indemnify BNY for
costs, expenses, damages, liabilities or claims for which BNY is liable under
preceding 6(a). This indemnity shall be a continuing obligation of each Fund,
its successors and assigns, notwithstanding the termination of this Agreement.
Without limiting the generality of the foregoing, each Fund shall indemnify BNY
against and save BNY harmless from any loss, damage or expense, including
counsel fees and other costs and expenses of a defense against any claim or
liability, arising from any one or more of the following:
(i) Errors in records or instructions, explanations,
information, specifications or documentation of any kind, as the case may be,
supplied to BNY by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by
BNY pursuant to written or oral instructions of the Fund or otherwise without
gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in
good faith in accordance with the advice or opinion of counsel for a Fund or its
own counsel;
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(iv) Any improper use by a Fund or its agents,
distributor or investment advisor of any valuations or computations supplied by
BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the
method of computing each Series' net asset value; or
(vi) Any valuations of securities or net asset value
provided by a Fund.
(c) Actions taken or omitted in reliance on oral or written
instructions, or upon any information, order, indenture, stock certificate,
power of attorney, assignment, affidavit or other instrument believed by BNY to
be genuine or bearing the signature of a person or persons believed to be
authorized to sign, countersign or execute the same, or upon the opinion of
legal counsel for a Fund or its own counsel, shall be conclusively presumed to
have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this
Agreement, BNY shall have no duty or obligation with respect to, including,
without limitation, any duty or obligation to determine, or advise or notify the
Fund of: (i) the taxable nature of any distribution or amount received or deemed
received by, or payable to, a Fund; (ii) the taxable nature or effect on a Fund
or its Members of any corporate actions, class actions, tax reclaims, tax
refunds, or similar events; (iii) the taxable nature or taxable amount of any
distribution or dividend paid, payable or deemed paid, by a Fund to its Members;
or (iv) the effect under any Federal, state, or foreign income tax laws of the
Fund making or not making any distribution or dividend payment, or any election
with respect thereto.
(e) In providing the services hereunder BNY is authorized to
utilize any vendor (including without limitation pricing and valuation services
and legal or regulatory compliance monitoring services) reasonably believed by
BNY to be reliable to provide information. The Funds each agree that BNY shall
not be liable for any loss, damage or expense incurred as a result of errors or
omissions of any vendor utilized by BNY or any permitted delegee or agent
hereunder, and that no such vendor shall be an agent or delegee of BNY.
7. COMPENSATION.
For the services provided hereunder, each Fund agrees to pay BNY such
compensation as
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is mutually agreed from time to time and such out-of-pocket expenses (E.G.,
telecommunication charges, postage and delivery charges, record retention costs,
reproduction charges and transportation and lodging costs) as are incurred by
BNY in performing its duties hereunder. Except as hereinafter set forth,
compensation shall be calculated and accrued daily and paid monthly. Each Fund
authorizes BNY to debit such Fund's custody account for all amounts due and
payable hereunder. BNY shall deliver to each Fund invoices for services rendered
after debiting such Fund's custody account with an indication that payment has
been made. Upon termination of this Agreement before the end of any month, the
compensation for such part of a month shall be prorated according to the
proportion which such period bears to the full monthly period and shall be
payable upon the effective date of termination of this Agreement. For the
purpose of determining compensation payable to BNY, each Fund's net asset value
shall be computed at the times and in the manner specified in the Fund's
Prospectus.
8. TERM OF AGREEMENT.
(a) This Agreement shall continue until terminated by either
BNY giving to a Fund, or a Fund giving to BNY, a notice in writing specifying
the date of such termination, which date shall be not less than 90 days after
the date of the giving of such notice. Upon termination hereof, the affected
Fund(s) shall pay to BNY such compensation as may be due as of the date of such
termination, and shall reimburse BNY for any disbursements and expenses made or
incurred by BNY and payable or reimbursable hereunder.
(b) Notwithstanding the foregoing, BNY may terminate this
Agreement upon 30 days prior written notice to a Fund if such Fund shall
terminate its custody agreement with The Bank of New York, or fail to perform
its obligations hereunder in a material respect.
9. AUTHORIZED PERSONS.
Attached hereto as Exhibit B is a list of persons duly authorized by the
board of each Fund to execute this Agreement and give any written or oral
instructions, or written or oral specifications, by or on behalf of such Fund.
From time to time each Fund may deliver a new Exhibit B to add or delete any
person and BNY shall be entitled to rely on the last Exhibit B actually received
by BNY.
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10. AMENDMENT.
This Agreement may not be amended or modified in any manner except by a
written agreement executed by BNY and the Fund to be bound thereby, and
authorized or approved by such Fund's Board.
11. ASSIGNMENT.
This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by any Fund without the written consent
of BNY, or by BNY without the written consent of the affected Fund accompanied
by the authorization or approval of such Fund's Board.
12. GOVERNING LAW; CONSENT TO JURISDICTION.
This Agreement shall be construed in accordance with the laws of the
State of New York, without regard to conflict of laws principles thereof. Each
Fund hereby consents to the jurisdiction of a state or Federal court situated in
New York City, New York in connection with any dispute arising hereunder, and
waives to the fullest extent permitted by law its right to a trial by jury. To
the extent that in any jurisdiction any Fund may now or hereafter be entitled to
claim, for itself or its assets, immunity from suit, execution, attachment
(before or after judgment) or other legal process, such Fund irrevocably agrees
not to claim, and it hereby waives, such immunity.
13. SEVERABILITY.
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations shall not in any
way be affected or impaired thereby, and if any provision is inapplicable to any
person or circumstances, it shall nevertheless remain applicable to all other
persons and circumstances.
14. NO WAIVER.
Each and every right granted to BNY hereunder or under any other document
delivered hereunder or in connection herewith, or allowed it by law or equity,
shall be cumulative and
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may be exercised from time to time. No failure on the part of BNY to exercise,
and no delay in exercising, any right will operate as a waiver thereof, nor will
any single or partial exercise by BNY of any right preclude any other or future
exercise thereof or the exercise of any other right.
15. NOTICES.
All notices, requests, consents and other communications pursuant to this
Agreement in writing shall be sent as follows:
if to a Fund, at
if to BNY, at
The Bank of Xxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Title:
or at such other place as may from time to time be designated in writing.
Notices hereunder shall be effective upon receipt.
16. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts together shall
constitute only one instrument.
17. SEVERAL OBLIGATIONS.
The parties acknowledge that the obligations of the Funds hereunder are
several and not joint, that no Fund shall be liable for any amount owing by
another Fund and that the Funds have executed one instrument for convenience
only.
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IN WITNESS WHEREOF, the parties hereto have caused the foregoing
instrument to be executed by their duly authorized officers and their seals to
be hereunto affixed, all as of the day and year first above written.
By:
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Name:
Title:
on behalf of each Fund
identified on Exhibit A
attached hereto
THE BANK OF NEW YORK
By:
------------------------------
Name:
Title:
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EXHIBIT A
NAME OF FUND
Xxx Xxxx/Short Hedge Fund LLC
Ivy Multi-Strategy Hedge Fund LLC
EXHIBIT B
I, , of _______________________, a Limited Liability
Company (the "Fund"), do hereby certify that:
The following individuals are each authorized to give written or oral
instructions or written or oral specifications by or on behalf of the Fund to
BNY.
Name Position Signature
-------------------------- ------------------------- -------------------------
SCHEDULE 1
ADMINISTRATION, ACCOUNTING AND INVESTOR SERVICES
SERVICES AS FUND ACCOUNTANT AND SUB-ADMINISTRATOR.
1. MAINTENANCE OF BOOKS AND RECORDS. Will keep and maintain the following
books and records;
a. Journals containing an itemized daily record in detail of all
purchases and sales of securities (including interests in Investment
Funds), all receipts and disbursements of cash and all other debits
and credits; maintain historical tax lots as required.
b. General and auxiliary ledgers reflecting all asset, liability,
reserve, capital, income and expense accounts, including interest
accrued and interest received;
c. A monthly trial balance of all ledger accounts (except Member
accounts).
2. PERFORMANCE OF ACCOUNTING SERVICES. In addition to the maintenance of the
books and records specified above, perform the following accounting
services (monthly, unless expressly provided otherwise):
a. Calculate the net asset value of the Fund and the balance of each
Member's capital account, utilizing prices for the securities held in
the Fund's portfolio (including interests in Portfolio Funds and
Portfolio Accounts) obtained from sources approved by the Fund, or as
provided by the Adviser;
b. Reconcile with the custodian and Adviser all trade activity;
c. Reconcile cash and investment balances of the Fund with the Fund's
custodian, and provide the Investment Manager with the beginning cash
balance available for investment purposes. Update the cash
availability throughout the day as required by the Investment Manager;
d. Confirm the net asset value calculation prior to release to Members;
e. Determine unrealized appreciation and depreciation on securities held;
f. Post Fund transactions to appropriate general ledger categories;
g. Accrue expenses (including management fees and fees payable to service
providers) according to budgets prepared;
h. Monitor and report to the Fund and its custodian the outstanding
receivables and payables for all (1) security trades, (2) transactions
in Interests in the Fund and (3) income and expense accounts; and
i. Post summary Member activity and reconcile balances, including
receivables and payables.
3. SPECIAL REPORTS AND SERVICES.
a. May provide additional special reports upon the request of the Fund or
the Adviser, which may result in an additional charge, the amount of
which shall be agreed upon between the parties.
b. May provide such other similar services as may be reasonably requested
by the Fund, which may result in an additional charge, the amount of
which shall be agreed upon between the parties.
4. ADDITIONAL ACCOUNTING & FINANCIAL ADMINISTRATION SERVICES. shall also
perform the following additional accounting and administrative services for
each Fund:
a. Provide monthly hard copy reports of unaudited financial information
as described below, upon request of the Fund. The reports will include
the following items:
Schedule of Investments
Trial Balance
Income Statement
Unrealized Gain/Loss Report
Statement of Changes in Net Assets
b. Subject to the approval of the Fund's independent accountants and
counsel, provide and prepare accounting information for the following:
i. registration statements on Form N-2 and other required
reports to Members and filings relating to the registered
Interests of the Fund;
ii. the annual audit by the Fund's auditors;
iii. examinations performed by the SEC and other regulatory
agencies; and
iv. Supplemental tax information and IRS Form 1099 or equivalent
to Managers and fund non-corporate vendors.
c. Prepare and monitor fund expense budgets and coordinate cash
disbursements for Fund expenses;
d. Provide such periodic reports as the parties shall agree upon, at such
times that the parties agree upon, as set forth in a separate writing,
including reports used in preparation of financial reports, regulatory
fillings, compliance reporting, total return and tax reporting;
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e. Respond to surveys from industry publications and rating agencies for
example to, Lipper, Morningstar, IMoneyNet, Xxxxxxxxxxxx, XXXXXX,
Standard & Poors's, Moody's and the Investment Company Institute;
f. Subject to the approval of Fund counsel and the Fund's independent
accountants, prepare and file semi-annual and annual financial
statements; and any related filings such as N-30D;
g. Subject to the approval of Fund counsel and Fund's independent
accountants, prepare and file Form N-SAR;
h. Calculate and distribute all standard performance information;
i. Preparation of the Board books;
5. PARTNERSHIP ACCOUNTING SERVICES.
a. provide data required to prepare Federal and state income tax returns,
including Schedule K-1s, after receiving year-end adjustments from the
Fund's auditors and any book to tax adjustments required (the Fund
acknowledging that it shall obtain all tax consulting services from
its independent accountants);
b. review and reconcile the payment of redemptions to Members;
c. Allocate profit and loss to Member accounts;
d. Calculate and produce Member tax records;
e. obtain tax identification numbers from the Internal Revenue Service;
i. provide assistance and advice to the Fund and the Administrator
on federal income tax matters relating to the Services hereunder;
ii. Subject to the approval of Fund's independent accountants,
prepare and file the Fund's annual federal and state income tax
returns and K-1's (if applicable); and
f. perform such additional services that Administrator or the Company
may, from time to time reasonably request; provided, however, that, to
the extent that the performance of any of such other services requires
to incur additional costs, and notifies Administrator thereof promptly
after such request, such services shall be provided in exchange for
such additional compensation that is agreed upon by the parties.
g. Calculate Member repurchase amounts;
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6. ADDITIONAL SERVICES AS SUB-ADMINISTRATOR.
a. COMPLIANCE SERVICES. Develop compliance checklists which follows
compliance procedures drafted by the Fund, and provide compliance
monitoring services incorporating certain of those procedures, which
will include, among other matters, compliance with the Fund's
investment objective, defined investment policies and restrictions,
and distribution and income requirements as are determinable based
upon the fund's accounting records; and oversee and assist with
regulatory audits.
b. BLUE SKY SERVICES. Prepare such reports, applications and documents as
may be necessary or desirable to register the Interests with state
securities authorities; monitor the sale of Interests for compliance
with state securities laws, and file with the appropriate state
securities authorities the registration statements and reports for the
Fund and the Interests and all amendments thereto, as may be necessary
or convenient to register and keep effective the registration of the
Fund and the Interests, or any exemption from registration, with state
securities authorities;
c. ADDITIONAL LEGAL & SUB-ADMINISTRATION SERVICES. shall perform, the
following additional legal and administration services.
i. Prepare, produce and distribute Board meeting materials,
including but not limited to agendas, proposed resolutions, and
relevant sections of the Board meeting materials;
ii. Provide appropriate personnel to attend board meetings;
iii. Administer contracts on behalf of the Fund with, among others,
the Fund's, distributor, custodian, transfer agent and fund
accountant;
iv. Maintain corporate records on behalf of the Fund, including, but
not limited to, minute books and operating agreements;
v. Obtain and keep in effect fidelity bonds and directors and
officers/errors and omissions insurance policies for the Fund in
accordance with the requirements of Rules 17g-1 and 17d-1(7)
under the 1940 Act as such bonds and policies are approved by the
Board, and file such notices and copies of such bonds as required
under the 1940 Act.
The Administrator shall also perform upon request such other legal
/administration services as may be requested from time to time. In each case,
the Fund or Administrator shall notify the other party in writing of the scope
of the specific services to be provided; the commencement date (and, if
applicable, termination date) for rendering such services; and the location
(i.e. whether at the offices of the Administrator) where the books and records
related thereto shall be maintained.
7. MEMBERSHIP AGENT. The Administrator shall also maintain Member accounts on
its investor recordkeeping systems, and provide the following investor
services in connection therewith:
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a. Produce and mail monthly investor statements to Members and the
Advisor;
b. Post investor transactions and mail confirmations;
c. Balance daily transaction activity;
d. Maintain Member information files;
e. Complete cash settlement between the Fund, the custodian and Members;
f. Reconcile DDA's;
g. Microfiche and/or imaging of all investor suitability applications and
source documentation;
h. Prepare daily open items report;
i. Coordinate development of systematic enhancements;
j. Generate user defined reports from investor recordkeeping system,
subject to such charges as may be quoted and agreed upon in accordance
with Section 3(b) hereof;
k. Complete quality assurance review of transactions;
l. Track and report sales activity;
m. Coordinate and monitor movement and escrow money for subscriptions and
redemptions and reconcile with the Fund's bank account;
n. Administer escrow accounts per instructions;
o. Review and maintain completed investor documentation;
p. Develop a return policy for incomplete documentation;
q. Monitor transaction activity to ensure compliance with AML and the US
Patriot Act; and
r. Mail repurchase notices to Members.
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