Exhibit (h)(i)
FORM OF DISTRIBUTION AGREEMENT
CSFB ALTERNATIVE CAPITAL REGISTERED FUNDS OF HEDGE FUNDS
This Distribution Agreement (the "Agreement") dated as of March [ ], 2005,
shall be entered into by and among the funds listed in Appendix B to be known as
the CSFB Alternative Capital Registered Funds of Hedge Funds (each a "Fund" and
collectively the "Funds"), each of which is a Delaware limited liability company
operating (or intending to operate) as a closed-end, non-diversified management
investment company registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), and Credit Suisse First Boston LLC (the
"Distributor"), a Delaware limited liability company operating as a
broker-dealer, registered under the Securities and Exchange Act of 1934 (the
"1934 Act") and Investment Advisers Act of 1940 (the "Advisers Act"), and with
the National Association of Securities Dealers, Inc. ("NASD").
WHEREAS
(A) The Funds desire to issue units of limited liability company interests
("Units"), pursuant to the Funds' registration statements on Form N-2 dated
March [ ], 2005, as amended or supplemented from time to time including the
prospectus and the statement of additional information ("SAI") and any
supplements or amendments thereto ("Registration Statement").
(B) The Funds desire to appoint the Distributor as distributor with
respect to the Units, and the Distributor is willing to accept such
appointment.
NOW IT IS AGREED AS FOLLOWS:
1. DISTRIBUTION OF UNITS
(a) Subject to the terms and conditions set forth herein, the Funds
appoint the Distributor as their non-exclusive distributor in connection with
the offer and sale of Units, and the Distributor hereby accepts such appointment
and agrees to use its reasonable best efforts to offer and sell Units to
investors whom the Distributor reasonably believes meet the eligibility
requirements set forth in the Registration Statement and to use all reasonable
efforts to assist the Funds in closing the sale of Units by each investor who
submits a Subscription Agreement (as defined below). Unless otherwise agreed by
the parties, the Funds and/or CSFB Alternative Capital, Inc., investment adviser
and services agent to the Funds (the "Investment Adviser" or the "Services
Agent"), shall be responsible for reviewing each Subscription Agreement to
confirm that it has been completed in accordance with the instructions thereto
and that each has been completed by or on behalf of an "Eligible Investor" as
described in the Registration Statement. The Funds and/or the Services Agent, in
its or their sole discretion, may return to the Distributor any Subscription
Agreement that is not completed to its or their satisfaction and shall be under
no obligation to accept any Subscription Agreement. The Distributor is not
obligated to sell any specific number of Units or to purchase any Units for its
own account. The Funds shall be entitled to appoint additional distributors.
(b) In offering Units, the Distributor shall act solely as the agent of
the Funds not as principal.
(c) Prior to forwarding a Subscription Agreement to the Funds and/or the
Services Agent (or their or its designee) for acceptance, the Distributor shall
use its reasonable efforts to determine that the subscriber for Units has a
legitimate source of funds, that there is no reason to suspect such subscriber
of money laundering activities, and that in forwarding the Subscription
Agreement the Distributor is compliant with the program described in Section
5(g).
(d) For purposes of the offering of Units, the Funds have furnished to the
Distributor copies of the Registration Statement and subscription documentation
(the "Subscription Agreement"). Additional copies of such documents will be
furnished to the Distributor at no cost to the Distributor in such numbers as
may be reasonably requested. The Distributor is authorized to furnish to
prospective subscribers for
Units only such information concerning the Funds and the offering as may be
contained in the Registration Statement, the Funds' formation documents, or any
other documents, including sales material, if filed with the Registration
Statement or approved in writing by the Funds (collectively with the
Registration Statement, formation documents and Subscription Agreement, the
Funds' "Offering Documents"). The Distributor shall assist the Services Agent
(or its designee) in maintaining a record of each prospective investor to whom
the Distributor furnishes Offering Documents, copies of which the Services Agent
shall make available to the Distributor on request.
(e) The Funds may suspend or terminate the offering of any Units at any
time as to specific classes of investors, as to specific jurisdictions or
otherwise. Upon notice to the Distributor of the terms of such suspension or
termination, the Distributor shall suspend solicitation of subscriptions for
Units in accordance with such terms until the Funds notify the Distributor that
such solicitation may be resumed.
(f) The Funds will furnish the Distributor with such documents as it may
reasonably require, from time to time, for the purpose of enabling it to offer
and sell Units as contemplated by this Agreement, or in order to evidence the
accuracy of any of the representations and warranties, or the fulfillment of any
of the conditions contained in this Agreement. All proceedings taken by the
Funds in connection with the issuance and sale of Units as contemplated in this
Agreement will be satisfactory in form and substance to the Distributor.
(g) The Distributor accepts such appointment as distributor and agrees to
render such services and to assume the obligations herein set forth for the
compensation herein provided. The Distributor shall for all purposes herein
provided be deemed to be an independent contractor and, unless expressly
provided herein or otherwise authorized, shall have no authority to act for or
represent the Funds in any way. The Distributor, by separate agreement with the
Funds, may also serve the Funds in other capacities. The services of the
Distributor to the Funds under this Agreement are not to be deemed exclusive,
and the Distributor shall be free to render similar or other services to others
so long as its services hereunder are not impaired thereby. The Distributor
represents that it is a registered securities dealer and a member in good
standing of the NASD.
(h) In carrying out its duties and responsibilities hereunder, the
Distributor may, pursuant to separate written contracts, appoint various
financial services firms and/or advisers ("Firms"), to provide advertising,
promotion and other distribution services contemplated hereunder directly to or
for the benefit of existing and potential shareholders who may be clients of
such Firms. Such Firms shall at all times be deemed to be independent
contractors retained by the Distributor and not the Funds.
(i) The Distributor shall use its best efforts with reasonable promptness
to sell such part of the authorized Units of the Funds remaining unissued as
from time to time shall be effectively registered under the Securities Act of
1933, as amended ("Securities Act"), at prices determined as hereinafter
provided and on terms hereinafter set forth, all subject to applicable federal
and state laws and regulations and to the Funds' currently effective
Registration Statement; provided, however, that the Distributor may, in its
discretion, refuse to accept orders for Units from any particular applicant.
Without limiting the foregoing, the Distributor agrees to: (i) sell Units only
to an investor who is an "Eligible Investor" as that term is defined in the
Registration Statement; (ii) obtain and comply with any investor certification
requirements set forth in the Funds' Registration Statement; and (iii) impose
the requirements set forth in (i) and (ii) of this paragraph as a condition of
the sales activity of any Firm or other person with whom the Distributor enters
into a selling group arrangement with respect to the Units.
(j) The Distributor shall sell Units of the Funds to or through qualified
Firms in such a manner, not inconsistent with the provisions hereof and the
Funds' Registration Statement, as the Distributor may determine from time to
time, provided that no Firm or other person shall be appointed or authorized to
act as agent of the Funds without prior consent of the Funds. The Distributor is
authorized to enter into member servicing arrangements with such Firms as
described in a Fund's Registration Statement, as applicable, and a Fund, as
described in its Registration Statement, as applicable, will reimburse the
Distributor for any payments made to such Firms that have agreed to provide
ongoing member services and account maintenance services to members in the Funds
that are their customers. In addition to sales made by it as agent of the Funds,
the Distributor may, in its discretion, also sell Units of the Funds as
principal to persons with whom it does not have selling group agreements.
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(k) Units of the Funds offered for sale or sold by the Distributor shall
be so offered or sold at a price per share determined in accordance with the
Registration Statement. The price each Fund shall receive for Units purchased
from it shall be the net asset value used in determining the public offering
price applicable to the sale of such Units, except with respect to Units sold
during the initial offering period, as defined in the Registration Statement,
which shall be offered and sold at the price set forth therein. The Distributor
may compensate Firms, from its fees, for sales of Units at the commission levels
provided in the Registration Statement from time to time. The Distributor may
pay other commissions, fees or concessions to Firms, and may pay them to others
in its discretion, in such amounts as the Distributor shall determine from time
to time consistent with applicable regulations.
(l) The Distributor will require each Firm to conform to the provisions
hereof and the Registration Statement with respect to the public offering price
or net asset value, as applicable, of the Funds' Units, and neither the
Distributor nor any such Firms shall withhold the placing of purchase orders so
as to make a profit thereby.
(m) The Funds will use their best efforts to keep effectively registered
under the 1940 Act, for sale as herein contemplated, such Units as the
Distributor shall reasonably request and as the Securities and Exchange
Commission shall permit to be so registered. Notwithstanding any other provision
hereof, the Funds may terminate, suspend, or withdraw the offering of Units
whenever, in their sole discretion, actions they deem to be desirable.
(n) The Funds will execute any and all documents and furnish any and all
information that may be reasonably necessary in connection with the
qualification of their Units for sale (including the qualification of any Fund
as a dealer where necessary or advisable) in such states as the Distributor may
reasonably request (it being understood that the Funds shall not be required
without their consent to comply with any requirement which in their opinion is
unduly burdensome). The Funds will furnish to the Distributor from time to time
such information with respect to the Funds and their Units as the Distributor
may reasonably request for use in connection with the sale of Units of the Fund.
(o) The Distributor shall issue and deliver or shall arrange for various
Firms to issue and deliver on behalf of the Fund such confirmations of sales
made by it pursuant to this Agreement as may be required under any applicable
law. At or prior to the time of issuance of Units, the Distributor will pay or
cause to be paid to the Funds the amount due the Funds for the sale of such
Units. Units shall be registered on the transfer books of the Funds in such
names and denominations as the Distributor may specify.
(p) The Distributor shall order Units of the Funds from the Funds only to
the extent that it shall have received purchase orders therefore. The
Distributor will not make, or authorize Firms or others to make (a) any short
sales of Units of the Funds; or (b) any sales of such Units to any member of the
Funds' board of managers ("Board") or officer of the Funds or to any officer or
Board member of the Distributor or of any corporation or association furnishing
investment advisory, managerial or supervisory services to the Funds, or to any
corporation or association, unless such sales are made in accordance with the
Registration Statement relating to the sale of such Units. The Distributor, on
behalf of and for the account of the Funds, may repurchase the Units of the
Funds at such prices and upon such terms and conditions as shall be specified in
the Funds' Registration Statement. In selling or repurchasing Units of the Funds
for the account of the Funds, the Distributor will in all respects conform to
the requirements of all state and federal laws and the Conduct Rules of the
National Association of Securities Dealers, Inc., relating to such sale or
repurchase, as the case may be. The Distributor will observe and be bound by all
the provisions of the Funds' organizational documents (and of any fundamental
policies adopted by the Funds pursuant to the 1940 Act), which in any way
require, limit, restrict, prohibit or otherwise regulate any action on the part
of the Distributor hereunder.
2. HANDLING OF ORDERS
(a) For purposes of this Agreement, purchases of Units whose subscriptions
were solicited by the Distributor and accepted by the Funds are referred to
herein as the "Distributor's Subscribers."
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(b) All properly presented and accepted subscriptions of the purchase of
Units shall be executed at the offering price per Units as described in the
Registration Statement.
(c) The procedures relating to soliciting and the handling subscriptions
for Units will be subject to the terms of the Registration Statement and the
Operating Procedures set forth in Appendix A hereto.
(d) Payments for Units shall be made as specified in the Registration
Statement and Subscription Agreement.
(e) The Distributor will not at any time be responsible for performing
recordkeeping or accounting services with respect to the Funds, except as
described in Section 1(d) hereof. The Funds shall promptly inform the
Distributor of each Fund's net assets and net asset value per Unit (and/or in
certain instances estimated net asset values) as soon as reasonably practicable
following their calculation. The Distributor is authorized to communicate such
calculations to each of the Distributor's Subscribers. In the event that
estimated net asset values are provided in lieu of net asset values, the
Distributor shall make appropriate disclosures to the Distributor's Subscribers.
3. FEES AND EXPENSES
(a) The Distributor may be entitled to charge a sales load, as applicable
for certain Funds, on the purchase price of Units of up to 3.5%, as specified in
a Fund's Registration Statement, upon acceptance of the investor's subscription
for Units by the Services Agent; provided that the Distributor may waive or
reduce the sales load in particular cases as described in the Registration
Statement. The Distributor may re-allow all or any portion of the sales load to
broker-dealers as the distributor may determine.
(b) Except as may otherwise be agreed to by the Funds, the Distributor
shall be responsible for the payment of all costs and expenses incurred by it in
connection with the performance of its obligations under this Agreement (other
than those costs associated with preparing and updating the Registration
Statement and with reviewing the qualifications of prospective investors, which
costs will be borne by the Funds).
4. ADDITIONAL REPRESENTATION, WARRANTIES AND COVENANTS OF THE FUNDS
The Funds hereby represent, warrant, and covenant to the Distributor that:
(a) The Funds have been duly formed under the laws of the State of
Delaware and have the power and authority to affect the offering of their Units
and conduct their business as described in the Registration Statement. All
necessary filings, consents and other actions necessary to qualify the offering
of units in each applicable U.S. state and to conduct the business of the Funds
as described in the Registration Statement have been, or will timely be, made or
taken.
(b) The Funds intend to engage in business as closed-end, non-diversified
management investment companies and are registered as such under the 1940 Act.
(c) The sale of Units and the execution, delivery and performance of this
Agreement and the Funds' conduct of business as described in the Registration
Statement will not result in the violation of any applicable law.
(d) The Funds will use the proceeds from the sale of Units for the
purposes set forth in the Registration Statement.
(e) Units to be or which may be issued by the Funds have been duly
authorized for issuance and sale and, when issued and delivered by the Funds
will conform in all material respects to all statements relating thereto
contained in the Registration Statement.
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(f) The Registration Statement and any selling materials prepared or
approved by the Funds do not contain any untrue statement of material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading. If, at any time after the
commencement of the offering of Units and prior to the termination of such
offering, an event occurs that in the opinion of counsel to the Funds materially
affects the Funds and that should be set forth in an amendment or supplement to
the Registration Statement in order to make the statements in the Registration
Statement not misleading the Funds will notify the Distributor as promptly as
practicable of the occurrence of such event and prepare and furnish to the
Distributor copies of an amendment or supplement to the Registration Statement,
in such reasonable quantities as it may request, for delivery to Distributor's
Subscribers in order that the Registration Statement will not contain any untrue
statement of any material fact or omit to state a material fact that in the
opinion of such counsel is necessary to make the statements in the Registration
Statement not misleading.
(g) This Agreement has been duly authorized, executed and delivered by the
Funds and, upon execution by the Distributor, will constitute a valid and
binding agreement of the Funds.
(h) Upon the Distributor's request, the Funds will make available to the
Distributor any information pertaining to the Funds reasonably requested by any
prospective investor.
(i) The foregoing covenants and representations shall be true and correct
as of the date hereof and for so long as the Agreement remains in effect and the
Distributor's subscribers are invested in that Fund.
5. ADDITIONAL REPRESENTATION, WARRANTIES AND COVENANTS OF THE DISTRIBUTOR.
The Distributor hereby represents and warrants to the Funds as follows:
(a) The Distributor will comply with all applicable laws and regulations
in connection with its activities as distributor.
(b) The Distributor has full power and authority to enter into, and to
perform its obligations under, this Agreement.
(c) The execution of this Agreement by the Distributor has been validly
authorized.
(d) In selling Units, the Distributor will solicit offers to buy Units
only in compliance with the procedures described in Section 1(i) above and the
Registration Statement. Neither the Distributor nor any other persons authorized
by the Distributor will give any information or make any representations, other
than those contained in the Registration Statement and any other Offering
Documents specifically approved by the Funds.
(e) The Distributor will distribute to each person to whom the Distributor
has furnished a copy of the Registration Statement and/or other applicable
written offering document any amendment or supplement thereto provided to the
Distributor by the Funds as may be applicable to such person.
(f) The Distributor acknowledges that transfers of Units (and their
repurchase by the respective Fund) are restricted as described in the
Registration Statement.
(g) The Distributor represents that it has an anti-money laundering
program in place reasonably designed to comply with Section 352 of the USA
Patriot Act, NASD Rule 3011, and NYSE Rule 445. The Distributor's anti-money
laundering program includes: (i) Anti-Money Laundering/ "Know your Customer"
polices and procedures; (ii) the designation of an Anti-Money Laundering
Compliance Officer; (iii) recording-keeping and reporting practices in
accordance with applicable law; (iv) reporting of suspicious activity to
government authorizes in accordance with applicable law; (v) anti-money
laundering
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training; and (vi) independent testing for compliance. The Distributor will
provide such periodic reports or certification to the Funds regarding this
program as the Funds may reasonably request.
(h) The Distributor maintains all licenses and registrations necessary
under applicable law and regulations (including the rules of the NASD) to
provide the services required to be provided by the Distributor under this
Agreement.
6. LIABILITY; INDEMNIFICATION
(a) The Funds agree to indemnify, defend and hold the Distributor and its
affiliates and their respective officers, directors, employees, agents,
representatives and controlling persons free and harmless from and against any
and all claims, demands, liabilities and reasonable expenses (including the cost
of investigating or defending such claims, demands or liabilities and any
reasonable expenses (including the cost of investigation or defending such
claims, demands or liabilities and any reasonable counsel fees incurred in
connection therewith) which the Distributor and its affiliates and their
respective officers, directors, employees, agents, representatives and/or any
such controlling person may incur arising out of or based upon (i) any untrue
statement of a material fact or omission to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading contained in the Registration Statement or other Offering Documents
(except to the extent such untrue statement or omission was made in reliance on
and in conformity with information provided in writing to the Funds, by the
Distributor for inclusion in the Registration Statement or other Offering
Documents); (ii)) any material breach by the Funds of any provision of this
Agreement including any representation, warranty, covenant or agreement set
forth herein; (iii) any material violation of any applicable law by the Funds or
their officers, directors, employees, agents (other than the Distributor), or
representatives; (iv) any actions of the Funds and their officers, directors,
employees and agents (other than the Distributor) or representatives relating to
the sale of Units, including but not limited to any statements or
representations, written or oral, concerning the Funds that such a party makes
to the Distributor and its agents and representatives; (v) the action of the
Funds and their employees and agents relating to the Funds' processing of
Subscription Agreements and the servicing of customer accounts; or (vi) any act
or omission made in respect of its function as Distributor; provided, however,
that, in no event shall anything herein be so construed as to protect the
Distributor against any liability to which the Distributor would otherwise be
subject by reason of its gross negligence, willful misfeasance or bad faith or
reckless disregard of its obligations and duties under this Agreement, or
violation of any applicable law by the Distributor in connection with the
distribution of Units. The Funds' agreement to indemnify the Distributor, and
other indemnities as aforesaid is expressly conditional upon the Funds' being
promptly notified of any action brought against the Distributor, such as
notification to be given by letter or facsimile addressed to the Funds at the
address set forth in this Agreement or other address communicated to the
Distributor in writing (but only to the extent that the Funds are prejudiced by
the failure to give prompt notice), and further conditional upon the Distributor
reasonably cooperating with the Funds with respect to any claim or demand for
which the Distributor seeks indemnity and promptly defending such claims if the
Funds reasonably request. In addition, any determination by the Funds under this
Section 6(a) will be made in accordance with Section 17 of the 1940 Act. The
Funds agree to promptly notify the Distributor of the commencement of any
litigation proceedings against the Funds, or any of their officers or directors
in connection with the issue and sale of any Units.
(b) The Distributor agrees to indemnify, defend and hold the Funds and
their controlling persons free and harmless from and against any and all claims,
demands, liabilities and reasonable expenses (including the cost of
investigating or defending such claims, demands or liabilities and any
reasonable counsel fees incurred in connection therewith) which such party may
incur, but only to the extent that such liability or expense incurred by such
party resulting from such claims or demands shall arise out of or be based upon
the Distributor's gross negligence, willful misfeasance, bad faith or reckless
disregard of its obligations and duties under this Agreement or violation by the
Distributor of any applicable law in connection with the distribution of Units.
The Distributor's agreement to indemnify such party as aforesaid is expressly
conditional upon the Distributor being promptly notified of any action brought
against such party, such notification to be given by letter or facsimile
addressed to the Distributor at its address set forth herein or other address
communicated to the Funds in writing (but only to the extent that the
Distributor is
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prejudiced by the failure to give prompt notice), and further conditional upon
such party reasonably cooperating with the Distributor with respect to any claim
or demand for which any of such party seeks indemnity and promptly defending
such claim if the Distributor reasonably requests.
(c) If recovery is not available under the foregoing indemnification
provisions of this Section 6 for any reason other than as specified therein, the
parties entitled to indemnification by the terms thereof shall be entitled to
contribution toward the amount paid or payable by such indemnified party as a
result of the liabilities, claims, costs (including attorneys fees and
expenses), damages and expenses referred to in Subsection (a) or (b) above. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by each party
from the offering of the Units, the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was asserted,
the opportunity to correct and prevent any untrue statement or omission, and any
other equitable considerations appropriate under the circumstances.
(d) Promptly after receipt by either party of notice of any claim or the
commencement of any action or proceeding with respect to which such party may be
entitled to be indemnified hereunder, the party claiming indemnification (the
"Indemnified Party") will notify the other party (the "Indemnifying Party") in
writing of such a claim or the commencement of such action or proceedings, and
the Indemnifying Party will assume the defense of such action or proceeding and
will employ counsel satisfactory to the Indemnified Party and will pay the fees
and expenses of such counsel as incurred. Notwithstanding the proceeding
sentence, the Indemnified Party will be entitled to employ counsel separate from
the Indemnifying Party's counsel and from any other party in such action if the
Indemnified Party determines that a conflict of interest exists which makes
counsel chosen by the Indemnifying Party not advisable or if the Indemnified
Party reasonably determines that the Indemnifying Party's assumption of the
defense does not adequately represent the Indemnified Party's interest. In such
event the Indemnifying Party will pay the fees and disbursements of such
separate counsel, but in no event shall the Indemnifying Party be liable for the
fees and expenses of more than one counsel (in addition to local counsel) for
the Indemnified Party in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
(e) The Indemnifying Party agrees that it will not, without prior written
consent of the Indemnified Party, settle any pending or threatened claim or
proceeding related to or arising out of such engagement or transaction or
conduct in connection therewith (whether or not the Indemnified Party is a party
to such claim or proceeding) unless such settlement includes a provision
unconditionally releasing the Indemnified Party from and holding the Indemnified
Party harmless against all liability in respect of claims by any releasing party
related to or arising out of such engagement or any transaction or conduct in
connection therewith. The Indemnifying Party will also promptly reimburse the
Indemnified Party for all reasonable expenses (including counsel fees) as they
are incurred by the Indemnified Party in connection with investigating,
preparing or defending, or providing evidence in, any pending or threatened
claim or proceeding in respect of which indemnification may be sough hereunder
(whether or not the Indemnified Party is a party to such claim or proceeding) or
in enforcing this Agreement.
(f) The provisions of this Section 6 shall survive termination of this
Agreement.
7. TERMS AND TERMINATION
(a) This Agreement will become effective for all purposes as of March [ ],
2005 and will remain in effect for an initial term of two years from such date,
unless terminated in accordance with the terms of this Agreement. Thereafter,
this Agreement will continue in effect from year to year, provided that each
such continuance is approved by the Funds' Board of Directors, including the
vote of a majority of the Directors who are not "interested persons" of the
Funds within the meaning of the 1940 Act.
(b) Either party may terminate this Agreement without cause, upon thirty
(30) days' prior written notice to the other party, or, if there has been a
material breach of any condition, warranty, representation or other term of this
Agreement by one party, by written notice to such breaching party, at any time;
provided however, that if this Agreement is terminated as to specific Units,
this Agreement shall
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only be deemed terminated with respect to those Units. This Agreement shall
terminate automatically in the event of its "assignment" within the meaning of
the 1940 Act.
8. NOTICE
Any notices under this Agreement shall be given in writing, sent by hand,
overnight courier, telecopier or certified or registered mail to the address set
forth below or to such other address as shall have been specified in writing to
the other party hereto, and shall be deemed to have been delivered effective at
the earlier of its receipt or within two (2) days after dispatch.
If to a Fund:
CSFB Alternative Capital Registered Fund of Funds
00 Xxxxxxx Xxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxx, President
With a copy to:
CSFB Alternative Capital, Inc.
00 Xxxxxxx Xxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx, Legal and Compliance
If to the Distributor:
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx, Private Client Services
With a copy to:
Credit Suisse First Boston LLC
Xxx Xxxxxxx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx, Legal and Compliance
9. CONFIDENTIALITY
(a) The Funds hereby acknowledge that they have received or will receive
written and/or oral information (such information being referred to in this
Section 9 as "Customer Information") from the Distributor regarding those
customers of the Distributor that subscribe for Units including the names of the
Distributor's subscribers and that all such Customer Information has been or
will be furnished to them subject to the provision of this Section 9. The Funds
agree that they will use, and that they will ensure that all of their affiliated
and agents and other entities providing services with respect to the Funds use,
the Customer Information solely in connection with the subscription for Units by
subscribers, the booking of such Units, the administration of the Fund and the
performance of their respective roles with respect to the Funds and their Units,
and for no other purpose whatsoever. Furthermore, the Funds agree that they will
not disclose or make available, and will ensure that none of their affiliates or
agents or other entities providing services with respect to the Funds discloses
or makes available, any Customer Information to any person or entity that does
not have a need to know such Customer Information in connection with the
foregoing. Specifically, and without limitation of the foregoing, the Funds
agree that they will not disclose or make available, and will ensure that none
of their affiliates or agents or other entities providing service with respect
to the Funds disclose or make available, any Customer Information to any persons
or entities
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responsible for or involved in the marketing or products or services to
customers of such persons or entities.
(a) The Distributor acknowledges and agrees that the Funds and their
respective affiliates may disclose Customer Information or portions thereof (1)
at the request of a regulatory or self-regulatory agency or in connection with
an examination of the Funds, or such affiliates by regulatory examiners; (2)
pursuant to SUBPOENA or other legal process; (3) at the express direction of any
other authorized government or self-regulatory agency; (4) to its internal or
external attorneys or auditors; (5) to others to whom the Funds or such
affiliates are required to make such disclosure by law or regulation, and in any
of the circumstances mentioned in clause (2), (3), or (5), the Funds shall (to
the extent permitted by law) give the Distributor reasonable prior notice of any
disclosure and shall, in any event, advise the Distributor of any such
disclosure to the extent permitted by law.
(c) The provisions of this Section 9 shall not apply to information
concerning a customer that is obtained in any manner other than pursuant to this
Agreement.
(d) The provisions of this Section 9 shall survive the termination of this
Agreement.
10. MISCELLANEOUS
(a) This Agreement is to be governed by, and construed in accordance with,
the laws of the State of New York without giving effect to choice of laws
principles, and the provisions of the 1940 Act (which provisions shall control
in the event of any conflict between the laws of the State of New York and the
1940 Act). Neither this Agreement nor any term hereof may be amended, changed,
waived, discharged or terminated except by an instrument in writing signed by
both parties.
(b) This Agreement sets forth the entire agreement between the parties
hereto and replaces and supersedes all other understanding, commitments, and
agreements relating to the subject matter hereof.
(c) If any provision of this Agreement is determined to be unenforceable,
the remaining provisions shall remain enforceable to the extent permissible.
(d) The Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same agreement.
(e) All parties hereto are expressly put on notice of the Funds' Limited
Liability Company Operating Agreements, and all amendments thereto. This
Agreement has been executed by and on behalf of the Funds by their
representatives as such representatives and not individually, and the
obligations of the Funds hereunder are not binding upon any of the Board
members, officers, or unitholders of the Funds individually but are binding upon
only the assets and property of the Funds. With respect to any claim by the
Distributor for recovery of any liability of the Funds arising hereunder
allocated to a particular Fund, whether in accordance with the express terms
hereof or otherwise, the Distributor shall have recourse solely against the
assets of that Fund to satisfy such claim and shall have no recourse against the
assets of any other Funds for such purpose.
9
IN WITNESS WHEREOF, the parties to this Agreement have caused it to be duly
executed as of the date first above written.
CSFB ALTERNATIVE CAPITAL MULTI-STRATEGY FUND, LLC
By:
----------------------------
Name:
Title:
CSFB ALTERNATIVE CAPITAL EVENT DRIVEN FUND, LLC
By:
----------------------------
Name:
Title:
CSFB ALTERNATIVE CAPITAL LONG/SHORT EQUITY FUND, LLC
By:
----------------------------
Name:
Title:
CSFB ALTERNATIVE CAPITAL RELATIVE VALUE FUND, LLC
By:
----------------------------
Name:
Title:
CSFB ALTERNATIVE CAPITAL TACTICAL TRADING FUND, LLC
By:
----------------------------
Name:
Title:
CSFB ALTERNATIVE CAPITAL MULTI-STRATEGY INSTITUTIONAL FUND, LLC
By:
----------------------------
Name:
Title
CSFB ALTERNATIVE CAPITAL EVENT DRIVEN INSTITUTIONAL FUND, LLC
By:
----------------------------
Name:
Title
10
CSFB ALTERNATIVE CAPITAL LONG/SHORT EQUITY INSTITUTIONAL FUND, LLC
By:
----------------------------
Name:
Title
CSFB ALTERNATIVE CAPITAL RELATIVE VALUE INSTITUTIONAL FUND, LLC
By:
----------------------------
Name:
Title
CSFB ALTERNATIVE CAPITAL TACTICAL TRADING INSTITUTIONAL FUND, LLC
By:
----------------------------
Name:
Title
CREDIT SUISSE FIRST BOSTON LLC
By:
----------------------------
Name:
Title:
11
APPENDIX A
OPERATING PROCEDURES
Unless otherwise agreed by the parties, the Funds agree that they will not
accept any subscriptions for Units directly from the Distributor's customers and
that any such subscriptions must be made through the Distributor.
Unless otherwise agreed by the parties, the Distributor will deliver all
Subscription Agreements to the Services Agent or its designee and the Services
Agent or its designee will be responsible for reviewing all Subscription
Agreements to confirm that they have been completed in their entirety.
The Funds or their designee will be responsible for maintaining records of
all subscribers and for providing Distributor's Subscribers, on a timely basis,
with at least quarterly statements of subscriptions and repurchases, and with at
least quarterly unaudited performance information for the Funds. The Funds or
their designee also will be responsible for providing the Distributor's
Subscribers with confirmations of subscriptions and repurchases.
The Distributor's Subscribers must comply with all subscription and
repurchase procedures, including deadlines, set forth in the Registration
Statement or otherwise communicated by the Funds to the Distributor with respect
to the transmission of subscription and repurchase requests.
00
XXXXXXXX X
CSFB ALTERNATIVE CAPITAL MULTI-STRATEGY FUND, LLC
CSFB ALTERNATIVE CAPITAL EVENT DRIVEN FUNDS, LLC
CSFB ALTERNATIVE CAPITAL LONG/SHORT EQUITY FUND, LLC
CSFB ALTERNATIVE CAPITAL RELATIVE VALUE FUND, LLC
CSFB ALTERNATIVE CAPITAL TACTICAL TRADING FUND, LLC
CSFB ALTERNATIVE CAPITAL MULTI-STRATEGY INSTITUTIONAL FUND, LLC
CSFB ALTERNATIVE CAPITAL EVENT DRIVEN INSTITUTIONAL FUND, LLC
CSFB ALTERNATIVE CAPITAL LONG/SHORT EQUITY INSTITUTIONAL FUND, LLC
CSFB ALTERNATIVE CAPITAL RELATIVE VALUE INSTITUTIONAL FUND, LLC
CSFB ALTERNATIVE CAPITAL TACTICAL TRADING INSTITUTIONAL FUND, LLC
13
