EXHIBIT 99.2(k)(ii)
SERVICES AGREEMENT
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THIS AGREEMENT is made as of the day of July, 2004 by and between
the Topiary Master Fund for Benefit Plan Investors (BPI) LLC, a Delaware
limited liability company (the "Fund"), and INVESTMENT COMPANY CAPITAL CORP.,
a Maryland corporation ("ICCC").
W I T N E S S E T H:
WHEREAS, the Fund is registered as a closed-end, non-diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Fund desires to retain ICCC to provide certain services,
as set forth in this Agreement, and ICCC is willing so to serve.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as
follows:
1. Appointment. The Fund hereby appoints ICCC to perform such services and to
serve such functions as set forth in this Agreement, on the terms set forth in
this Agreement and the Appendices hereto. ICCC accepts such appointment and
agrees to furnish such services and serve such functions.
2. Delivery of Documents. The Fund has furnished or caused to be furnished
ICCC with copies properly certified or authenticated of the following
documents and will furnish ICCC from time to time with copies, properly
certified or authenticated, of all amendments of or supplements thereto, if
any:
(a) Resolutions of the Fund's Board of Directors authorizing the
appointment of ICCC to act in such capacities on behalf of the Fund
as set forth in Section 3 to this Agreement;
(b) The Fund's limited liability company operating agreement and all
amendments thereto;
(c) The Fund's most recent Registration Statement on Form N-2 under
the 1940 Act as filed with the Securities and Exchange Commission
(the "SEC"); and
(d) Copies of the Fund's most recent prospectus or prospectuses,
including amendments and supplements thereto (collectively, the
"Prospectus").
3. Services to be Provided; Fees.
(a) During the term of this Agreement, ICCC shall perform the
following services:
(i) Draft agendas, resolutions, and materials for quarterly and
special board meetings;
(ii) Coordinate the preparation, assembly, and mailing of all
board materials, including the collection of such materials as
the Board may request from other Fund service providers or from
other sources;
(iii) Handle all inquires from Board members and communicate
with Board members as needed to provide necessary information;
(iv) Provide an employee to act as Secretary for the Fund, and
draft and circulate minutes of all quarterly and special board
meetings; and
(v) Provide such other services as mutually agreed by the
parties hereto.
(b) For the services performed by ICCC pursuant to this Agreement,
the Fund will compensate ICCC in the amount of $[50,000] per year,
payable quarterly in arrears.
4. Records. The books and records pertaining to the Fund as may be in the
possession of ICCC shall be the property of the Fund. As applicable, such
books and records shall be prepared and maintained as required by the 1940 Act
and other applicable securities laws and rules and regulations. The Fund, or
the Fund's authorized representatives, shall have access to such books and
records at all times during ICCC's normal business hours. Upon the reasonable
request of the Fund, copies of any such books and records shall be provided by
ICCC to the Fund or the Fund's authorized representative at the Fund's
expense.
5. Cooperation With Other Service Providers. In addition to any obligations
set forth in this Agreement, ICCC shall cooperate with the Fund's other
service providers and shall take all reasonable actions in the performance of
its obligations under this Agreement to ensure that the necessary information
is made available to such other service providers, as may be required by the
Fund from time to time.
6. Compliance with Governmental Rules and Regulations. The Fund assumes full
responsibility for insuring that the Fund complies with all applicable
requirements of the 1940 Act and any laws, rules, and regulations of
governmental authorities having jurisdiction.
7. Expenses.
(a) ICCC shall bear all expenses of its employees and overhead
incurred in connection with its duties under this Agreement and
shall pay all salaries and fees of the Fund's directors and officers
who are employees of ICCC.
(b) ICCC shall bear no other expenses of the Fund and shall have no
obligation
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or responsibility to pay or cause to be paid any other expenses of
the Fund.
8. Liability; Indemnification. Neither ICCC nor any of its officers,
directors, or employees shall be liable for any error of judgment or for any
loss suffered by the Fund in connection with the matters to which this
Agreement relates, except a loss resulting from willful misfeasance, bad
faith, or gross negligence on its or their part in the performance (or
reckless disregard) of its or their obligations and duties under this
Agreement. The Fund agrees to indemnify and hold harmless ICCC and its
nominees from all taxes, charges, expenses, assessments, claims, and
liabilities (including, without limitation, liabilities arising under the 1940
Act, and any state and foreign securities and blue sky laws, all as currently
in existence or as amended from time to time) and expenses, including (without
limitation) reasonable attorneys' fees and disbursements, arising directly or
indirectly from any action or thing which ICCC takes or does or omits to take
or do at the request or on the direction of or in reliance on the advice of
the Fund; provided, that neither ICCC nor any of its nominees shall be
indemnified against any liability to the Fund or to its shareholders (or any
expenses incident to such liability) arising out of ICCC's own willful
misfeasance, bad faith, gross negligence, or reckless disregard of its duties
and obligations under this Agreement. Notwithstanding anything else in this
Agreement to the contrary, ICCC shall have no liability to the Fund for any
consequential, special, or indirect losses or damages that the Fund may incur
or suffer as a consequence of ICCC's performance of the services provided in
this Agreement.
9. Responsibility of ICCC. ICCC shall be under no duty to take any action on
behalf of the Fund except as specifically set forth herein or as may be
specifically agreed to by ICCC in writing. In the performance of its duties
hereunder, ICCC shall be obligated to exercise care and diligence and to act
in good faith and to use its best efforts within reasonable limits in
performing services provided for under this Agreement, but ICCC shall not be
liable for any act or omission which does not constitute willful misfeasance,
bad faith, or gross negligence on the part of ICCC or reckless disregard by
ICCC of its duties under this Agreement.
10. Non-Exclusivity. The services of ICCC to the Fund are not to be deemed
exclusive and ICCC shall be free to render accounting or other services to
others (including other investment companies) and to engage in other
activities. It is understood and agreed that directors, officers, or employees
of ICCC may serve as directors or officers of the Fund, and that directors or
officers of the Fund may serve as directors, officers, and employees of ICCC
to the extent permitted by law; and that directors, officers, and employees of
ICCC are not prohibited from engaging in any other business activity or from
rendering services to any other person, or from serving as partners,
directors, or officers of any other firm or corporation, including other
investment companies.
11. Notice. Any notice or other communication required to be given pursuant to
this Agreement shall be deemed duly given if delivered or mailed by registered
mail, postage prepaid, to the Fund at c/o DB Absolute Return Strategies, 00
XxXxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000, Attention: Xxxxxxx Xxxxxxx, and
to ICCC at Xxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, Attention: Xxxxxxx Xxxx.
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12. Miscellaneous.
(a) This Agreement shall become effective as of the date first above
written and shall remain in force for one year, unless terminated
earlier in accordance with this provision. This Agreement may be
terminated at any time without the payment of any penalty, by any
party hereto on ninety (90) days' written notice to the other party.
(b) This Agreement shall be construed in accordance with the laws of
the State of Maryland.
(c) If any provisions of this Agreement shall be held or made
invalid in whole or in part, the other provisions of this Agreement
shall remain in force. Invalid provisions shall, in accordance with
the intent and purpose of this Agreement, be replaced by mutual
consent of the parties with such valid provisions which in their
economic effect come as close as legally possible to such invalid
provisions.
(d) Except as otherwise specified herein, ICCC shall be entitled to
rely on any notice or communication reasonably believed by it to be
genuine and correct and to have been sent to it by or on behalf of
the Fund.
(e) ICCC agrees on behalf of itself and its employees to treat
confidentially all records and other information relative to the
Fund and its prior, present, or potential shareholders, except,
after prior notification to and approval in writing by the Fund,
which approval shall not be unreasonably withheld and may not be
withheld where ICCC may be exposed to civil or criminal contempt
proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, or when so requested by
the Fund.
(f) Any part of this Agreement may be changed or waived only by an
instrument in writing signed by both parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
THE TOPIARY MASTER FUND FOR BENEFIT
PLAN INVESTORS (BPI) LLC
By:
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Name:
Title:
INVESTMENT COMPANY CAPITAL CORP.
By:
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Name:
Title:
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