FORM OF MEMBER SERVICING AGREEMENT
This MEMBER SERVICING AGREEMENT (this "Agreement") made as of __________
___, 2009, by and between Excelsior Multi-Strategy Hedge Fund of Funds (TE 2),
LLC (the "Fund"), a limited liability company organized under the laws of the
State of Delaware and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the
"Firm"), a corporation existing under the laws of the State of Delaware.
WITNESSETH:
WHEREAS, the Fund is registered under the Investment Company Act of 1940
(the "Investment Company Act") as a closed-end, non-diversified, management
investment company; and
WHEREAS, the Firm is a financial intermediary that is in the business of
selling shares of investment companies and providing member services ("Member
Services") for the benefit of its customers ("Customers") holding interests in
the Fund ("Interests") in accounts at the Firm; and
WHEREAS, the Fund and the Firm wish to enter into an agreement with each
other with respect to the provision of Member Services to Customers that are
members of the Fund ("Members");
NOW THEREFORE, the parties agree as follows:
SECTION 1. APPOINTMENT AS SERVICING AGENT.
(a) The Fund hereby appoints the Firm, during the term herein specified,
to provide certain Member Services, as set forth below in subsection (b), to the
Members. The Firm hereby accepts such appointment.
(b) The Firm is authorized to perform, and shall undertake to perform, or
arrange for the performance of, the following Member Services:
(i) assisting in facilitating communications between Members
and the Fund, and providing information to Members about
the Fund, the Interests and offers by the Fund to
repurchase Interests;
(ii) handling inquiries from Members regarding the Fund (e.g.,
responding to questions concerning investments in the
Fund, capital account balances and reports and tax
information provided by the Fund);
(iii) assisting in the establishment and maintenance of Member
accounts with the Fund, including notifying the Fund of
any changes to Member information,
such as changes of address and assisting in the
maintenance of Fund records containing Member
information;
(iv) receiving, aggregating and processing purchases or
tenders of Interests, processing distributions for
Members, assisting in compulsory redemptions, and issuing
reports and transaction
confirmations to Members;
(v) providing such office space and equipment, telephone
facilities, personnel and literature distribution as is
necessary or appropriate for providing information and
services to Members;
(vi) providing such other administration services as the Fund
may request from time to time; and
(vii) providing such other information and Member Services as
may be reasonably requested by the Fund.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) The Fund represents and warrants to the Firm, as the date hereof, that:
(i) the Fund is registered under the Investment Company Act
and has filed a Registration Statement on Form N-2 with
the Securities and Exchange Commission. The Registration
Statement conforms in all material respects to the
requirements of the Investment Company Act and the rules
thereunder;
(ii) to the extent required by law, the Fund is registered and
its Interests are qualified for sale in all states and
other jurisdictions in the United States unless the Firm
is notified in writing to the contrary.
(iii) the Fund's investment adviser, U.S. Trust Hedge Fund
Management, Inc. (the "Investment Adviser") is registered
as an investment adviser under the Investment Advisers
Act of 1940 and in any state where registration is
required, and each of the Investment Adviser and the
Fund and each of such persons' respective affiliates will
comply with all applicable laws, rules and regulations;
and
(iv) the foregoing representations, warranties and covenants
will be true and correct at all times during the term of
this Agreement.
(b) The Firm represents and warrants to the Fund, as the date hereof, that:
(i) it is duly registered as a broker/dealer pursuant to the
Securities Exchange Act of 1934, as amended;
(ii) it is a member of, and in good standing with, the
Financial Industry Regulatory Authority;
2
(iii) it has been duly licensed or qualified to transact
business and is in good standing in each jurisdiction
in which such qualification is required, except where the
failure to so qualify would not have a material adverse
effect on the ability of the Firm to perform its
obligations under this Agreement; and
(iv) it has the financial resources available necessary for
the performance of its obligations as contemplated
herein.
(c) Each party shall notify the other before or immediately upon the
occurrence of any event which causes any of the representations and warranties
made by it above to not be true.
SECTION 3. DUTIES OF THE FIRM. As Member servicing agent, the Firm will be
required to:
(i) provide Member Services to Members that are Customers of
the Firm; and
(ii) provide the Board of Managers of the Fund (the "Board")
with information, at least annually, or more frequently as
reasonably requested, regarding: (i) the nature of the
Member Services provided by the Firm; and (ii) the
aggregate amount of payments received by the Firm under
this Agreement.
SECTION 4. FEES.
(a) For providing Member Services to Customers in accordance with this
Agreement, the Fund will pay to the Firm a quarterly fee computed at the annual
rate of 0.25% of the net assets of the Fund determined as of the start of
business on the first business day of each calendar quarter (after adjustment
for any subscriptions effective on that date) or such other amount as the
parties may agree in writing from time to time (the "Servicing Fee"). The
Servicing Fee is payable quarterly in arrears.
(b) The Servicing Fee will be pro rated appropriately for capital
contributed on any date that does not fall on the first day of a calendar
quarter, or withdrawn from the Fund on any date other than on the last day of a
calendar quarter, based on the actual number of days remaining in such quarter.
SECTION 5. LIABILITY OF THE FUND.
The Firm represents that it has notice of the provisions of the Fund's
Limited Liability Company Agreement disclaiming Member and Board liability for
acts and obligations of the Fund. The Firm understands and agrees that the
Fund's obligations under this Agreement are not binding upon any Member or any
person serving on the Board personally, but bind only the Fund and the Fund's
property. Any rights or causes of action will be directed to the parties in this
Agreement.
SECTION 6. NOTICES. Any notice or other communication required to be given
in writing pursuant to this Agreement shall be deemed duly given if delivered or
mailed by registered mail, postage prepaid, (1) to the Fund at 000 Xxxx Xxxxx
Xxxx, Xxxxxxxx, Xxxxxxxxxxx, 00000, Attention: Xxxxxx X. Xxxx and (2) to the
Firm at Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
3
Incorporated, 4 World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
[ ], Managing Director; or such other address as the Fund or the Firm may have
designated in writing to the other.
SECTION 7. DURATION AND TERMINATION OF THIS AGREEMENT.
(a) This Agreement shall become effective as of the date first above written
and shall remain in effect until terminated pursuant to this Section or Section
8. This Agreement may be terminated at any time, without the payment of any
penalty, by the Board or by vote of a majority of the outstanding voting
securities of the Fund, or by the Firm, on sixty days' written notice to the
other party. Any termination of this Agreement shall not affect the obligation
of the Fund to pay any Servicing Fees to the Firm accrued prior to such
termination.
4
SECTION 8. AMENDMENTS OF THIS AGREEMENT. This Agreement may be amended or
modified by the parties only if such amendment is specifically approved (i) by
the Board or by the vote of a majority of the outstanding voting securities of
the Fund and (ii) by the vote of a majority of those members of the Board who
are not parties to the Agreement or "interested persons" of any such party cast
in person at a meeting called for the purpose of voting on such approval.
This Agreement shall automatically and immediately terminate in the event of its
assignment.
SECTION 9. CONFIDENTIALITY. The Firm agrees to treat as confidential any
information which is furnished to the Firm (or to parties acting on its behalf)
by or on behalf of the Investment Adviser, any administrator or the Fund (the
"Information") under this Agreement. The Firm agrees that it will use the
Information only for the purposes related to investments in the Fund made by its
Customers, and that the Information will be kept confidential by the Firm and
its partners, members, managers, officers, directors, employees,
representatives, attorneys, accountants, agents, and other affiliates
(collectively, the "Related Persons"), and that the Firm and the Related Persons
shall not disclose the Information to any person; provided, however, that the
Information may be disclosed: (a) to the Firm and Related Persons who require
the Information for the purpose of evaluating or providing services in
connection with investments in the Fund; (b) pursuant to prior written consent
of the Fund, to any federal or state regulatory agency and their employees,
agents, and attorneys for the purpose of making any filings or disclosures
required by law, provided that the Firm provides prior written notice to Fund of
the information to be disclosed; (c) pursuant to prior written consent of the
Fund, in response to any inquiry, subpoena or other request for information from
any federal or state court, regulatory agency, or other governmental agent; and
(d) to any other person the disclosure to whom the Fund previously authorize in
writing.
SECTION 10. GOVERNING LAW. The provisions of this Agreement shall be
construed and interpreted in accordance with the applicable provisions of the
Investment Company Act and the laws of the State of New York as at the time in
effect without giving effect to the principles of conflicts of law rules. To the
extent that the applicable law of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the Investment
Company Act, the latter shall control.
SECTION 11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which when
take together shall constitute one and the same agreement.
Section 12. Severability. In the event any provision of this Agreement is
determined to be void or unenforceable, such determination shall not affect the
remainder of this Agreement, which shall continue to be in force.
Section 13. Entire Agreement. This Agreement sets forth the agreement and
understanding of the parties hereto solely with respect to the matters covered
hereby. Nothing in this Agreement shall govern, restrict or limit in any respect
any other business dealings between the parties hereto unless otherwise
expressly provided herein.
5
Section 14. Headings. The descriptive headings of the sections of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
Section 15. Terms. The terms "vote of a majority of the outstanding voting
securities," "assignment," and "interested person," when used in this Agreement,
shall have the respective meanings specified in the Investment Company Act.
[Signature Page Follows]
6
IN WITNESS WHEREOF, the parties hereto have executed this Member Servicing
Agreement as of the day and year first above written.
Excelsior Multi-Strategy Hedge Fund of Funds
(TE 2), LLC
By:---------------------------------
Name: Xxxxxx X. Xxxx
Title: Chief Financial Officer
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By:----------------------------------
Name: [ ]
Title: Managing Director
