Exhibit (2)(g)(ii)
INVESTOR SERVICING AGREEMENT
BY AND BETWEEN
XXXXXXXXXX INVESTORS, LLC
AND
XXXXXXXXXX PARTNERS, LLC
July 1, 2005
AGREEMENT, made as of the 1st day of July, 2005, by and between
Xxxxxxxxxx Investors, LLC, a limited liability company formed under the laws of
the State of Delaware ("Xxxxxxxxxx") and Xxxxxxxxxx Partners, LLC, a limited
liability company formed under the laws of the State of Delaware (the "Fund").
RECITAL
WHEREAS, the Fund desires to retain Xxxxxxxxxx to provide or to
facilitate, on behalf of the Fund, the provision by shareholder service
providers ("Service Providers") of personal investor services and account
maintenance services ("Investor Services") to members of the Fund ("Members")
that are customers of such Service Providers; and
WHEREAS, Xxxxxxxxxx desires to provide and/or to facilitate, on behalf
of the Fund, the provision of Investor Services by Service Providers to their
customers that are Members.
NOW THEREFORE, in consideration of the terms and conditions herein
contained, the parties agree as follows:
I. APPOINTMENT
(a) The Fund hereby authorizes Xxxxxxxxxx to provide Investor Services
and to retain Service Providers who have entered into an appropriate service
provider agreement with Xxxxxxxxxx, a form of which is attached hereto as
EXHIBIT A, to provide Investor Services to Members who are customers of such
Service Providers. 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;
(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 Xxxxxxxxxx may reasonably request.
II. INVESTOR SERVICING FEE
(a) In recognition of the services that Xxxxxxxxxx will provide, the
Fund will make payments to Xxxxxxxxxx within ten (10) days of the end of each
calendar month equal to a certain percentage (on an annualized basis), as set
forth in EXHIBIT B attached hereto, of the aggregate value of outstanding
Interests held by Members of the Fund that receives Investor Services as of the
last day of a calendar month (before repurchases of Interests or performance
allocations) (the "Investor Servicing Fee").
(b) Xxxxxxxxxx may pay amounts pursuant to this Section II to any
"affiliated person" (as that term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act")) of Xxxxxxxxxx if such
affiliated person is a Service Provider.
(c) Xxxxxxxxxx may, in its sole discretion, waive or pay all or a
portion of the Investor Servicing Fee to Service Providers.
III. DUTIES OF XXXXXXXXXX
(a) Xxxxxxxxxx agrees to either provide such Investor Services or to
retain Service Providers to provide Investor Services and to compensate such
Service Providers for their services.
(b) Xxxxxxxxxx shall report to the Board of Managers of the Fund on a
quarterly basis regarding: (i) the nature of the Investor Services provided by
the Service Providers; (ii) the amount of payments made by Xxxxxxxxxx to such
Service Providers; and (iii) the amount of Investor Servicing Fees paid to
Xxxxxxxxxx by the Fund.
IV. LIABILITY OF THE FUND
Xxxxxxxxxx understands and agrees that the obligations of the Fund
under this Agreement are joint and not several, and are not binding upon any
Member or any person serving on the Board of Managers of the Fund personally,
but bind only the Fund and the property of the Fund. Xxxxxxxxxx represents that
it has notice of the provisions of the Fund's organizational documents
disclaiming Member and Manager liability for acts and obligations of such Fund.
V. DURATION
This Agreement will take effect on the date first set forth above.
Unless earlier terminated pursuant to paragraph VII 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 by the Board of Managers of the Fund, including the vote of the
majority of the Managers who are not parties to this Agreement or "interested
persons" (as defined by the Investment Company Act and the rules thereunder) of
any such party.
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VI. ASSIGNMENT AND AMENDMENT
Any amendment to this Agreement shall be in writing and shall be
subject to the approval of the Board of Managers of the Fund, including the vote
of a majority of the Managers who are not "interested persons," as defined by
the Investment Company Act and the rules thereunder. This Agreement shall
automatically and immediately terminate in the event of its "assignment," as
defined by the Investment Company Act, and the rules thereunder.
VII. TERMINATION
This Agreement may be terminated (i) by Xxxxxxxxxx at any time without
penalty upon sixty days' (60) 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 Xxxxxxxxxx (which notice may be waived by
Xxxxxxxxxx). Any termination of this Agreement shall not affect the obligation
of the Fund to pay the Investor Servicing Fee to Xxxxxxxxxx prior to such
termination.
VIII. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
XXXXXXXXXX INVESTORS, LLC
By: /s/ XXXXX XXXXXXXXXX
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Name: Xxxxx Xxxxxxxxxx
Title: President
XXXXXXXXXX PARTNERS, LLC
By: /s/ XXXXX XXXXXXXXXX
----------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Manager
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EXHIBIT A
FORM OF SERVICE PROVIDER AGREEMENT
SERVICE PROVIDER AGREEMENT, made as of the ___ day of ___________,
2005, by and between Xxxxxxxxxx Investors, LLC, a limited liability company
formed under the laws of the State of Delaware ("Xxxxxxxxxx") and
_______________, a ___________________ ("Service Provider").
RECITAL
WHEREAS, Xxxxxxxxxx serves as investment adviser to Xxxxxxxxxx
Partners, LLC (the "Fund"); and
WHEREAS, Xxxxxxxxxx has been authorized, pursuant to that certain
Investor Servicing Agreement, dated as of July 1, 2005, between Xxxxxxxxxx and
the Fund (the "Investor Servicing Agreement"), to engage Service Provider to
provide personal investor services and account maintenance services ("Investor
Services") to clients of Service Provider who are Members of the Fund
("Members").
NOW THEREFORE, in consideration of the terms and conditions herein
contained, the parties agree as follows:
1. Appointment of Service Provider.
(a) Xxxxxxxxxx hereby authorizes the Service Provider to provide
Investor Services to Members. 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;
(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 Members liaison
services as Xxxxxxxxxx may reasonably request.
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2. Service Provider Fee. In recognition of providing Investor Services, the
Service Provider will receive, within thirty (30) days' of the end of each
calendar month, a fee to reimburse it for all or a portion of such Investor
Services, in an amount equal to a certain percentage or percentages (on an
annualized basis) of the aggregate value of outstanding interests of the Fund
("Interests") held by Members that receive Investor Services from the Service
Provider determined as of the last day of the quarter (before repurchases of
Interests or incentive allocations) (the "Service Provider Fee"), as set forth
in Appendix B.
3. Liability of the Fund. The Service Provider acknowledges and understands that
the Fund is not liable to it for any payment hereunder, and that Xxxxxxxxxx is
the sole entity responsible for paying the Service Provider Fee.
4. Duration. This Agreement will take effect on the date first set forth above,
and will remain in effect unless terminated in accordance with the provisions of
Section 6 hereof.
5. Assignment or Amendment. Any amendment to this Agreement by the Service
Provider shall be in writing and shall be subject to the approval of Xxxxxxxxxx
in its sole discretion. This Agreement may not be assigned by the Service
Provider to any person without the prior written approval of Xxxxxxxxxx, which
approval may be withheld in its sole discretion.
6. Termination. This Agreement may be terminated by either party to the other
without penalty upon sixty (60) days' written notice to the other party (which
notice may be waived by such other party). Notwithstanding the immediately
previous sentence, this Agreement will terminate automatically upon the
termination of the Investor Servicing Agreement. Any termination of this
Agreement shall not affect the obligation of the Xxxxxxxxxx to pay the Service
Provider Fee to Service Provider for Investor Services rendered prior to 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 of 1940, as amended (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 Securities and Exchange Commission (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.
XXXXXXXXXX INVESTORS, LLC
By: /S/ XXXXX XXXXXXXXXX
------------------------
Name: Xxxxx Xxxxxxxxxx
Title: President
[NAME]
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EXHIBIT B
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Fund Servicing Fee (as a percentage of the
aggregate value of outstanding Interests)
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Xxxxxxxxxx Partners, LLC 0.45%
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