Exhibit 25(2)(h)(3)
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
AGREEMENT made as of December 6, 2005 between SAGE MULTI-STRATEGY FUND,
L.L.C. a Delaware limited liability company (the "Fund"), and ROBECO SECURITIES,
L.L.C., a Delaware limited liability company (the "Distributor").
WITNESSETH:
WHEREAS, the Fund is registered under the Investment Company Act of 1940,
as amended (the "Investment Company Act"), as a closed-end, non-diversified
management investment company;
WHEREAS, the Fund is authorized to issue interests in the Fund
("Interests") pursuant to the Fund's registration statement on Form N-2, as it
may be amended or supplemented from time to time (the "Registration Statement");
WHEREAS, the Distributor is a securities firm engaged in the business of
selling interests of investment companies either directly to purchasers or
through other securities dealers; and
WHEREAS, the Fund and the Distributor wish to enter into an agreement with
each other with respect to the offering of the Fund's Interests.
NOW THEREFORE, the parties agree as follows:
Section 1. APPOINTMENT OF THE DISTRIBUTOR; OFFERING
(a) Subject to the terms and conditions of this Agreement, the Fund
hereby appoints the Distributor as its non-exclusive distributor in connection
with the distribution of the Interests, and the Distributor hereby accepts such
appointment.
(b) The Distributor agrees to use its reasonable best efforts to offer
and sell Interests to investors that the Distributor reasonably believes meet
the eligibility requirements set forth in the Registration Statement and to use
all reasonable efforts to assist the Fund in obtaining performance by each
prospective investor who submits a Investor Certificate (as defined below).
(c) Unless otherwise agreed by the parties hereto, Sage Capital
Management, the Fund's investment adviser (the "Investment Adviser"), or SEI
Investments Global Funds Services, the Fund's administrator (the
"Administrator") shall be responsible for reviewing each investor certificate
("Investor Certificate") to confirm that it has been completed in accordance
with the instructions thereto. The Fund, the Investment Adviser or the
Administrator, in its or their sole discretion, may return to the Distributor
any Investor Certificate that is not completed to its or their satisfaction and
the Fund shall be under no obligation to accept any Investor Certificate.
(d) The Distributor acknowledges that Interests will be offered and
sold only as set forth in the Registration Statement and the Fund's Limited
Liability Company Agreement.
(e) The Fund may suspend or terminate the offering of the Interests at
any time as to specific classes of investors (if such separate classes are
established), 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 purchases of Interests in accordance with such
terms until the Fund notifies the Distributor that such solicitation may be
resumed.
(f) It is acknowledged and agreed that the Distributor is not
obligated to sell any specific number of Interests or to purchase any Interests
for its own account. The Fund shall be entitled to appoint additional
distributors.
Section 2. AGENCY In offering Interests, the Distributor shall act solely
as an agent of the Fund and not as principal.
Section 3. DUTIES OF THE FUND
(a) The Fund shall take, from time to time, but subject always to any
necessary approval of the Board of Managers of the Fund or of the members of the
Fund (the "Members"), all necessary action to fix the number of authorized
Interests and such steps as may be necessary to register the same under the
Securities Act of 1933, as amended (the "Securities Act"), to the end that there
will be available for sale such number of Interests as the Distributor
reasonably may be expected to sell.
(b) For purposes of the offering of Interests, the Fund will furnish
to the Distributor copies of the Registration Statement, including the
prospectus contained therein, the Investor Certificate and any other
documentation for use in the offering of Interests. Additional copies of such
documents will be furnished to the Distributor at no cost to the Distributor in
such numbers as reasonably requested. The Distributor is authorized to furnish
to prospective investors only such information concerning the Fund and the
offering as may be contained in the Registration Statement, the Fund's formation
documents, or any other documents (including sales material), if approved by the
Fund.
(c) The Fund shall furnish to the Distributor copies of all financial
statements of the Fund which the Distributor may reasonably request for use in
connection with its duties hereunder, and this shall include, upon request by
the Distributor, one certified copy of all financial statements prepared for the
Fund by independent public accountants.
(d) The Fund shall use its best efforts to qualify and maintain the
qualification of the Interests for sale under the securities laws of such
jurisdictions as the Distributor and the Fund may approve. Any such
qualification may be withheld, terminated or withdrawn by the Fund at any time
in its discretion. The expense of qualification and maintenance of qualification
shall be borne by the Fund. The Distributor shall furnish such information and
other material relating to its affairs and activities as may be required by the
Fund in connection with such qualification.
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(e) The Fund will furnish, in reasonable quantities upon request by
the Distributor, copies of annual and interim reports of the Fund.
(f) The Fund will furnish the Distributor with such other documents as
it may reasonably require, from time to time, for the purpose of enabling it to
perform its duties as contemplated by this Agreement.
Section 4. DUTIES OF THE DISTRIBUTOR
(a) The Distributor shall devote reasonable time and effort to its
duties hereunder. The services of the Distributor to the Fund hereunder are not
to be deemed exclusive and nothing herein contained shall prevent the
Distributor from entering into like arrangements with other investment companies
so long as the performance of its obligations hereunder is not impaired thereby.
(b) In performing its duties hereunder, the Distributor shall use its
best efforts in all respects to duly conform with the requirements of all
applicable laws relating to the sale of securities.
(c) The Distributor shall adopt and follow procedures, as approved by
the officers of the Fund, for the confirmation of sales to investors and
Selected Dealers (as defined below), the collection of amounts payable by
investors and Selected Dealers on such sales, and the cancellation of unsettled
transactions, as may be necessary to comply with the requirements of the NASD,
as such requirements may from time to time exist.
Section 5. SELECTED DEALER AGREEMENTS
(a) The Distributor shall have the right to enter into selected dealer
agreements (substantially in the form included in SCHEDULE A) with the
securities dealers listed in SCHEDULE B or such other securities dealers deemed
by the Distributor to be well positioned to sell Interests ("Selected Dealers");
provided that the Distributor shall periodically inform the Fund's Board of
Managers of its entrance into a selected dealer agreement. Interests sold to
Selected Dealers shall be for resale by such dealers only. Notwithstanding the
foregoing, the Distributor may enter into a selected dealer agreement that is
materially different than the form included in SCHEDULE A so long as the
Distributor receives the prior written consent of the Fund's Board of Managers,
including a majority of the managers who are not "interested persons," as such
term is defined by the Investment Company Act, of the Fund.
(b) Within the United States, the Distributor shall offer and sell
Interests only to such Selected Dealers as are members in good standing of the
NASD.
Section 6. FEES
(a) The Distributor is entitled to charge a sales load to each
investor on the purchase price of its Interests of up to 3.0% as specified in
the Registration Statement upon acceptance of the investor's purchase of
Interests by the Investment Adviser or Administrator; provided that the
Distributor shall have the authority to adjust or waive the sales load in
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particular cases, at its sole discretion, in consultation with the Fund, the
Investment Adviser or the Administrator and as generally described in the
Registration Statement.
(b) In accordance with applicable NASD Conduct Rules, the Distributor
shall cap the sales load it receives from investors at 3% of the total proceeds
proposed to be received by the Fund in respect of sales of Interests registered
under the Fund's registration statement on Form N-2.
Section 7. PAYMENT OF EXPENSES
(a) The Fund shall bear all of its own costs and expenses, including
fees and disbursements of its counsel and auditors, in connection with the
preparation and filing of any required registration statements under the
Investment Company Act, and all amendments and supplements thereto, and in
connection with any fees and expenses incurred with respect to any filings with
the NASD and preparing and mailing annual and interim reports and proxy
materials to members (including but not limited to the expense of setting in
type any such registration statements, or interim reports or proxy materials).
(b) The Fund shall bear any cost and expenses of qualification of the
Interests for sale pursuant to this Agreement and, if necessary or advisable in
connection therewith, of qualifying the Fund as a broker or dealer in such
states of the United States or other jurisdictions as shall be selected by the
Fund and the Distributor and the cost and expenses payable to each such state
for continuing qualification therein until the Fund decides to discontinue such
qualification.
(c) The Distributor shall be responsible for any payments made to
Selected Dealers as reimbursement for their expenses associated with payments of
sales commissions to financial consultants. In addition, after the prospectuses
and annual and interim reports have been prepared and set in type, the
Distributor shall bear the costs and expenses of printing and distributing any
copies thereof which are to be used in connection with the offering of Interests
to Selected Dealers or investors pursuant to this Agreement. The Distributor
shall bear the costs and expenses of preparing, printing and distributing any
other literature used by the Distributor or furnished by it for use by Selected
Dealers in connection with the offering of the Interests for sale to the public
and any expenses of advertising incurred by the Distributor in connection with
such offering.
Section 8. INDEMNIFICATION
(a) The Fund shall indemnify and hold harmless the Distributor and
each person, if any, who controls the Distributor, against any loss, liability,
claim, damage or expense (including the reasonable cost of investigating or
defending any alleged loss, liability, claim, damage or expense and reasonable
counsel fees incurred in connection therewith), as incurred, arising by reason
of any person acquiring any Interests, which may be based upon the Securities
Act, or on any other statute or at common law, on the ground that any
registration statement or other offering materials, as from time to time amended
and supplemented, or an annual or interim report to Members of the Fund,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary in order to make the statements
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therein not misleading, unless such statement or omission was made in reliance
upon, and in conformity with, information furnished to the Fund in connection
therewith by or on behalf of the Distributor; PROVIDED, HOWEVER, that in no case
(i) is the indemnity of the Fund in favor of the Distributor and any such
controlling persons to be deemed to protect the Distributor or any such
controlling persons thereof against any liability to the Fund or its Members to
which the Distributor or any such controlling persons would otherwise be subject
by reason of willful misfeasance, bad faith or gross negligence in the
performance of their duties or by reason of the reckless disregard of their
obligations and duties under this Agreement; or (ii) is the Fund to be liable
under its indemnity agreement contained in this paragraph with respect to any
claim made against the Distributor or any such controlling persons, unless the
Distributor or such controlling persons, as the case may be, shall have notified
the Fund in writing within a reasonable time after the summons or other first
legal process giving information of the nature of the claim or claims that have
been served upon the Distributor or such controlling persons (or after the
Distributor or such controlling persons shall have received notice of such
service on any designated agent), but failure to notify the Fund of any such
claim shall not relieve it from any liability which it may have to the person
against whom such action is brought otherwise than on account of its indemnity
agreement contained in this paragraph. The Fund will be entitled to participate
at its own expense in the defense or, if it so elects, to assume the defense of
any suit brought to enforce any such liability, but if the Fund elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Distributor, or such controlling person or persons of the
Distributor. In the event the Fund elects to assume the defense of any such suit
and retain such counsel, the Distributor, or such controlling person or persons
of the Distributor, shall bear the fees and expenses, as incurred, of any
additional counsel retained by them, but in case the Fund does not elect to
assume the defense of any such suit, it will reimburse the Distributor, or such
controlling person or persons of the Distributor, for the reasonable fees and
expenses, as incurred, of any counsel retained by them. The Fund shall promptly
notify the Distributor of the commencement of any litigation or proceedings
against it or any of its officers or Managers in connection with the issuance or
sale of any of the Interests.
(b) The Distributor shall indemnify and hold harmless the Fund and
each of its Managers and officers and each person, if any, who controls the Fund
against any loss, liability, claim, damage or expense, as incurred, described in
the foregoing indemnity contained in subsection (a) of this Section 8 but only
with respect to statements or omissions made in reliance upon, and in conformity
with, information furnished to the Fund in writing by or on behalf of the
Distributor for use in connection with the Registration Statement or other
offering materials, as from time to time amended, or the annual or interim
reports to Members. In case any action shall be brought against the Fund or any
person so indemnified, in respect of which indemnity may be sought against the
Distributor, the Distributor shall have the rights and duties given to the Fund,
and the Fund and each person so indemnified shall have the rights and duties
given to the Distributor by the provisions of subsection (a) of this Section 8.
Section 9. DURATION AND TERMINATION OF THIS AGREEMENT
(a) This Agreement shall become effective as of the date first above
written and shall remain in force for two years thereafter and thereafter
continue from year to year, but only so long as such continuance is specifically
approved at least annually (i) by the Managers or by the vote of a majority of
the outstanding voting securities of the Fund and (ii) by the vote of a
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majority of those Managers who are not parties to this Agreement or interested
persons of any such party cast in person at a meeting called for the purpose of
voting on such approval.
(b) This Agreement may be terminated at any time, without the payment
of any penalty, by the Managers or by vote of a majority of the outstanding
voting securities of the Fund, or by the Distributor, on sixty days' written
notice to the other party. This Agreement shall automatically terminate in the
event of its assignment.
(c) 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.
(d) In the event the offering of Interests is terminated, the
Distributor will not be entitled to unrecovered compensation (except for
out-of-pocket expenses).
Section 10. AMENDMENTS OF THIS AGREEMENT This Agreement may be amended by
the parties only if such amendment is specifically approved (i) by the Managers
or by the vote of a majority of outstanding voting securities of the Fund and
(ii) by the vote of a majority of those Managers who are not parties to this
Agreement or interested persons of any such party cast in person at a meeting
called for the purpose of voting on such approval.
Section 11. GOVERNING LAW The provisions of this Agreement shall be
construed and interpreted in accordance with the laws of the State of New York
as at the time in effect and the applicable provisions of the Investment Company
Act. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written. This Agreement may be executed by the
parties hereto in any number of counterparts, all of which shall constitute one
and the same instrument.
SAGE MULTI-STRATEGY FUND, L.L.C.
By: __________________________________
Name:
Title:
ROBECO SECURITIES, L.L.C.
By: __________________________________
Name:
Title:
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SCHEDULE A
SELECTED DEALER AGREEMENT
Ladies and Gentlemen:
The undersigned distributor (the "Distributor" or "us" or "we"), which is a
member firm of the National Association of Securities Dealers, Inc. ("NASD"),
has an agreement with Robeco-Sage Multi-Strategy Fund, L.L.C. (the "Fund"),
pursuant to which it acts as the distributor for the sale of units of limited
liability company interests in the Fund ("Units"). We are also authorized as
Service Agent for the Fund to retain Member Service Providers. Capitalized terms
not defined herein shall have the meaning ascribed to them in the Fund's
prospectus, as amended or supplemented from time to time (the "Prospectus").
The Fund is a closed-end registered management investment company
established as a limited liability company under the laws of the State of
Delaware. Units are intended to be offered and sold by the Fund only to persons
who are "qualified clients" as defined in Rule 205-3 under the Investment
Advisers Act of 1940, as amended (the "Advisers Act"), and as described in the
Prospectus. We have delivered or will deliver to the undersigned broker-dealer
(the "Selling Dealer" or "you"), for delivery to prospective purchasers of
Units, copies of the Prospectus, the investor certification (the "Investor
Certification"), the organizational documents and other relevant written
information approved and furnished by the Fund for use by such prospective
purchasers in connection with their purchase of Units (collectively, the
"Offering Documents").
We hereby appoint you as a selling dealer with respect to the offering of
Units, and you hereby accept such appointment, upon the following terms and
conditions:
1. In making available Units to your customers, you are acting as agent for
your customers. You agree on a non-exclusive basis to use reasonable efforts to
solicit and receive offers to purchase Units upon the terms and conditions set
forth in this Agreement and the Prospectus, provided that you shall have no
obligation to offer or sell any Units.
2. Orders received from you will be accepted through us only at the public
offering price applicable to each order, as set forth in the Prospectus. The
procedure relating to the handling of orders shall be subject to the terms of
this Agreement and instructions that we or the Fund shall forward from time to
time to you. All orders are subject to acceptance or rejection by the
Distributor or the Fund in the sole discretion of either, provided that, upon
any such rejection the Distributor or the Fund, as the case may be, shall
promptly advise you of such rejection. The minimum initial and subsequent
purchase requirements are as set forth in the Prospectus.
3. (a) You agree to provide the member services specified in Schedule A
to your customers who own Units.
(b) In connection with the offer and sale of Units, we authorize you
to collect and retain the upfront sales loads specified in Schedule B.
Furthermore, we agree to pay you the ongoing member servicing fees specified in
SCHEDULE B; provided, however, that in respect of the payment of member
servicing fees, in no event shall we be required to pay any amounts in excess of
the member servicing fees actually paid by the Fund to us. If there is any
conflict between a term of SCHEDULE B and a term of the Prospectus, the term of
the Prospectus shall prevail. We represent that there is currently no conflict
between a term of SCHEDULE B and a term of the Prospectus. We agree to advise
you of, and to provide you with copies of, any amendments or supplements or
additions to the Offering Documents reasonably in advance of the filing (if
applicable) or first use thereof. In addition, we acknowledge that you may
receive additional compensation from Robeco-Sage Capital Management, the Fund's
investment adviser or its affiliates, pursuant to a separate written agreement
between you and Robeco-Sage Capital Management.
4. (a) You agree that any Units shall be offered and sold only in
accordance with the terms and conditions set forth in this Agreement and each of
the Offering Documents.
(b) You will only: (1) submit Investor Certifications to us on behalf
of prospective investors who you have determined, after reasonable inquiry, to
be "qualified clients" as defined in Rule 205-3 under the Advisers Act; and (2)
solicit and receive offers to purchase Units (y) only in the jurisdictions in
which you and your employees maintain 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 you under this Agreement and (z)
in compliance with applicable state securities or Blue Sky laws. You shall
comply with all applicable laws, rules or regulations in connection with your
activities under this Agreement.
(c) You agree that: (1) you will keep records (and make them available
to us promptly upon request) of the information you relied on in concluding that
a prospective investor in the Fund is a "qualified client"; and (2) you will
prohibit the use of offering materials for distribution to or use by prospective
purchasers of Units, other than the Offering Documents furnished by the Fund
unless you have obtained our prior consent, which consent shall not be
unreasonably withheld.
(d) You shall not place orders for any Units unless you have already
received orders for such Units from your customers: (1) at the applicable public
offering price and subject to the terms of this Agreement, and the Prospectus;
and (2) who you reasonably believe meet all requirements to be eligible to
purchase Units at the time the order is submitted.
(e) You represent that in transmitting any order for Units that the
prospective investor for whom you transmit the order has signed the Investor
Certification and that you have determined that the Unit is a suitable
investment for the prospective investor.
(f) You agree to deliver to each of your customers making purchases a
copy of the then current Prospectus prior to the time of offering or sale.
Except to the extent sent directly to investors by the Fund and subject to
receipt of such material from Distributor, you agree thereafter to deliver to
such investors copies of the annual and interim reports, and proxy
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solicitation and tender offer materials of the Fund. You further agree in
connection with any proxy solicitation, to use reasonable best efforts to obtain
proxies from such purchasers and forward such proxies to the Fund. Copies of the
Offering Documents, as amended or supplemented from time to time, annual or
interim reports, and proxy solicitation and tender offer materials of the Fund
will be supplied to you in reasonable quantities upon your request and at the
Fund's expense.
(g) You agree, represent and warrant that, as of the date hereof and
for so long as this Agreement is in effect: (1) you are a broker-dealer
registered under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and a member in good standing with the NASD. You agree to notify us
promptly if you cease to be registered or licensed as a broker or dealer, or
fail to be a member in good standing of the NASD; (2) you are duly authorized to
enter into this Agreement, and this Agreement has been duly authorized, executed
and delivered by you and constitutes your legal, valid and binding agreement
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally, and by general principles of equity; (3) neither the execution
and delivery by you, nor the performance by you of your obligations under this
Agreement will contravene any provision of applicable law or your certificate of
formation or any agreement or other instrument binding on you that is material
to you or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over you and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is required for
the performance by you of your obligations under this Agreement, except such as
may be required by the securities or "blue sky" laws of the various States in
connection with the offer and sale of the Units; (4) you have been duly formed
and are validly existing as a __________________ in good standing under the laws
of the State of _____________ with power and authority to own your properties
and conduct your business and to enter into and perform your obligations under
this Agreement; (5) in connection with the offer, sale, or tender of Units, you
shall be the broker of record for such transactions between the Fund and your
customers and you shall comply with all applicable interpretations and guidance
from the NASD and with all the applicable Federal and State securities laws,
including without limitation, suitability, know your client, anti-money
laundering, prospectus delivery and furnishing confirmations pursuant to Rule
10b-10 under the 1934 Act; and (6) you agree to promptly advise the Distributor
if you receive notice of any investor legal complaint, litigation initiated, or
communication by a regulatory authority which relates to the Fund or to a
transaction in Units by you on behalf of an investor, and you agree to provide
us information and documentation thereon as we may reasonably request, subject
to confidentiality obligations and proprietary rights.
(h) You agree to notify us promptly if you are not now a member of the
Securities Investor Protection Corporation or its successor ("SIPC"), or if at
any time during the term of this Agreement you cease being a member of SIPC.
(i) You hereby certify that you have established and maintain an
anti-money laundering ("AML") program that includes written policies, procedures
and internal controls reasonably designed to identify your clients and have
undertaken appropriate due diligence efforts to "know your customers" in
accordance with all applicable anti-money laundering regulations in your
jurisdiction including, where applicable, the USA PATRIOT Act of 2001 (the
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"Patriot Act"). You represent and warrant that any money contributed to the Fund
by or on behalf of an investor introduced by you, will not be directly or
indirectly derived from activities that may contravene U.S. federal, state and
international laws and regulations including anti-money laundering laws and that
any investor introduced to the Fund by you shall not be a person or entity
listed in Executive Order 13224, Blocking Terrorist Property And Prohibiting
Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism,
or the Annex thereto, as published at xxxx://xxx.xxxxx.xxx/xxxxxxxxx.xxxx. You
further confirm that you will monitor for suspicious activity in accordance with
the requirements of the Patriot Act. You agree to provide us with such
information as we may reasonably request, including but not limited to the
filling out of questionnaires, attestations and other documents, to enable us to
fulfill our obligations under the Patriot Act, if any, and, upon our request.
Upon filing a Section 314 notice you agree to forward a copy to us, and further
agree to comply with all applicable requirements under the Patriot Act and
applicable implementing regulations concerning the use, disclosure, and security
of any information that is shared.
(j) You acknowledge that we are subject to the privacy regulations
under Title V of the Xxxxx-Xxxxx-Xxxxxx Act, 15 U.S.C. ss. 6801 et seq.,
pursuant to which regulations we are required to obtain certain undertakings
from you with regard to the privacy, use and protection of nonpublic personal
financial information of our clients or prospective clients. Therefore,
notwithstanding anything to the contrary contained in this Agreement, you agree
that: (1) you shall not disclose or use any Client Data except to the extent
necessary to carry out your obligations under this Agreement and for no other
purpose; (2) you shall not disclose Client Data to any third party, including,
without limitation, your third party service providers without our prior consent
and an agreement in writing from the third party to use or disclose such Client
Data only to the extent necessary to carry out your obligations under this
Agreement and for no other purposes; (3) you shall maintain, and shall require
all third parties approved under subsection (2) to maintain, effective
information security measures to protect Client Data from unauthorized
disclosure or use; and (4) you shall provide us with information regarding such
security measures upon the reasonable request of us and promptly provide us with
information regarding any failure of such security measures or any security
breach related to Client Data. The obligations set forth in this Section shall
survive termination of the Agreement. For the purposes of this Agreement, Client
Data means the nonpublic personal information (as defined in 15 U.S.C. ss.
6809(4)) of our clients or prospective clients (and/or our parent, affiliated or
subsidiary companies) received by you in connection with the performance of its
obligations under the Agreement, including, but not limited to: (i) an
individual's name, address, e-mail address, IP address, telephone number and/or
social security number; (ii) the fact that an individual has a relationship with
us and/or our parent, affiliated or subsidiary companies; or (iii) an
individual's account information.
(k) You shall not pay any commission, fee or other remuneration to any
person or entity (other than an employee) for soliciting any potential investor
in the Fund except pursuant to an arrangement which is approved by the Fund in
advance of such solicitation.
(l) We agree, represent and warrant that, as of the date hereof and
for so long as this Agreement is in effect: (1) we are duly authorized to enter
into this Agreement, and otherwise to act on behalf of the Fund pursuant to the
applicable distribution agreement of the
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Fund, or by some other proper authority; (2) we are a broker-dealer registered
under the 1934 Act and a member of the NASD, that such membership has not been
suspended, and that we agree to maintain membership in the NASD; (3) in respect
of the distribution of Units, we agree to abide by the provisions of the
Investment Company Act of 1940, as amended, the Securities Act of 1933, as
amended (the "1933 Act"), and the 1934 Act, and all applicable rules and
regulations of the Securities and Exchange Commission and the NASD, including
without limitation, the NASD Rules of Conduct; (4) this Agreement has been duly
authorized, executed and delivered by us and constitutes our legal, valid and
binding agreement enforceable in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally, and by general principles of equity; (5)
neither the execution and delivery by us, nor the performance by us of our
obligations under this Agreement will contravene any provision of applicable law
or our certificate of formation or operating agreement or any agreement or other
instrument binding upon us that is material to us or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over us,
and no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by us of our
obligations under this Agreement, except such as may be required by the
securities or "blue sky" laws of the various States in connection with the offer
and sale of the Units; and (6) we have been duly formed and are validly existing
as a limited liability company in good standing under the laws of the State of
Delaware with power and authority to own our properties and conduct our business
and to enter into and perform our obligations under this Agreement.
5. (a) You shall indemnify and hold harmless the Distributor, the Fund
and each person affiliated with the Distributor or the Fund, and their
respective officers, directors, employees, partners and shareholders from and
against any loss, liability, claim, damage or expense (including the reasonable
cost of investigating or defending any alleged loss, liability, claim, damage or
expense and reasonable counsel fees incurred in connection therewith), as
incurred, arising in connection with your violation of any of the provisions of
this Agreement, provided, however, that in no case is the foregoing indemnity to
be deemed to protect the Distributor, the Fund or any such affiliated persons,
officers, directors, shareholders, partners or employees thereof against any
liability to the Fund or its security holders to which the Distributor, the Fund
or any such person would otherwise be subject by reason of willful misfeasance,
bad faith or gross negligence in the performance of their duties or by reason of
the reckless disregard of their obligations and duties under this Agreement.
(b) We shall indemnify and hold harmless you, your affiliates and
directors, officers and employees of you and your affiliates from and against
any loss, liability, claim, damage or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damage or expense
and reasonable counsel fees incurred in connection therewith), as incurred,
arising in connection with (i) our violation of any of the provisions of this
Agreement, (ii) our violation of any applicable law, rule or regulation, and
(iii) any untrue statement of a material fact or any omission of a material fact
necessary in order to make the statements made, in light of the circumstances
under which they were made, not misleading in any registration statement,
prospectus, statement of additional information, annual or other periodic report
or proxy statement of the Fund or in any advertising or promotional material
published or provided by us or any of our agents; provided, however, that in no
case is the
12
foregoing indemnity to be deemed to protect you, your affiliates and directors,
officers and employees of your affiliates against any liability to which you or
any such person would otherwise be subject by reason of willful misfeasance, bad
faith or gross negligence in the performance of your duties or by reason of the
reckless disregard of your obligations and duties under this Agreement.
6. As a Selling Dealer, you are hereby authorized: (1) to place orders
directly with the Fund for Units to be sold to your customers subject to the
applicable terms and conditions governing the placement of orders and subject to
the compensation provisions set forth in this Agreement and the Prospectus, and
(2) to arrange for the redemption or tender of Units by your customers directly
to the Fund or its tender agent subject to the applicable terms and conditions
set forth in this Agreement, the Prospectus and the applicable tender offer.
7. Payment for Units purchased by your customers shall be made no later
than the settlement date specified in the confirmation by Federal Funds wire.
Payment may be made prior to the settlement date by Federal Funds wire to the
escrow agent as specified in the Prospectus. If such payment is not received by
us, we reserve the right, without notice, to cancel the purchase, and we may
hold you responsible for any direct loss suffered by us or by the Fund resulting
from your failure to make payment as aforesaid.
8. If any Units sold to your customers under the terms of this Agreement
are repurchased by the Fund or by us for the account of the Fund or are tendered
for redemption within seven business days after the date of the confirmation of
the original purchase, it is agreed that you shall forfeit your right to, and
refund to us, any compensation received by you in respect of such Units.
9. No person is authorized to make any representations concerning Units
except those contained in the Offering Documents. In making Units available to
your customers you shall rely solely on the representations contained in the
Offering Documents and supplemental information above mentioned. Any information
that we furnish to you other than the Offering Documents, periodic reports and
proxy solicitation and tender offer material is our sole responsibility and not
the responsibility of the Fund, and you agree that the Fund shall not have any
liability or responsibility to you in these respects unless expressly assumed in
connection therewith. You shall not use through the internet or otherwise any
sales literature or advertisement regarding the Fund without our prior written
consent, which consent shall not be unreasonably withheld, unless it is solely a
listing of product offerings or has been provided by us for such purpose.
10. We reserve the right in our discretion, without notice, to suspend
sales or withdraw the offering of Units entirely or to certain persons or
entities in a class or classes specified by us, provided that upon any such
suspension or withdrawal we shall immediately advise you of such suspension or
withdrawal. Each party hereto has the right to cancel this agreement upon notice
to the other party. Cancellation will not affect any outstanding order or
transaction, or any legal right or obligations which may have arisen prior to
cancellation. Upon cancellation of this Agreement, we will continue to pay you
the compensation set forth in Section 3 for the duration of each of your
clients' investment in the Fund (subject to NASD
13
Conduct Rules) and, for purposes hereof, you will be entitled to the
compensation set forth in Section 3 with respect to any person introduced by you
to us prior to cancellation who invests in the Fund within the 60 days following
cancellation. The provisions of Sections 3, 5 and 12 will survive cancellation
of this Agreement. This Agreement may be amended with the prior written mutual
agreement of each party hereto.
11. We shall have full authority to take such action as we may deem
advisable in respect of all matters pertaining to the offering of the Units.
Nothing contained in this paragraph is intended to operate as, and the
provisions of this paragraph shall not in any way whatsoever constitute, a
waiver by either party of compliance with any provision of the 1933 Act, the
Advisers Act, or of the rules and regulations of the Securities and Exchange
Commission issued thereunder.
12. The parties agree to keep the terms of this Agreement confidential and
not to disclose such terms unless they are made public other than due to a
breach of this Section 12 by the affected party or as required by law in which
case the affected party shall give the other parties as is reasonably
practicable the right to contest such law and/or limit the scope of the required
disclosure.
13. We will be responsible for the filing with the States of notifications
of the intention to sell Units and will use our reasonable efforts to file such
notifications of the intention to sell Units in each jurisdiction in which the
Units are to be offered by you. We will inform you as to the States in which
such notifications of the intention to sell Units have been duly made or where
no such notification is required, but we otherwise assume no responsibility or
obligation as to your right to sell Units in any jurisdiction. Units may only be
offered or sold to U.S. persons in States where notifications regarding the
Units have been duly filed or where no such notifications are required.
14. All representations, warranties and agreements contained in this
Agreement or contained in certificates of any party hereto submitted pursuant
hereto shall remain operative and in full force and effect, regardless of any
investigation made by, or on behalf of, either party or any person who controls
any of the foregoing and shall survive delivery and be restated and reaffirmed
as of the placement of each order under this Agreement.
15. All communications to us should be sent to the address below. Any
notice to you shall be duly given if mailed or faxed to you at the address
specified by you below.
16. Nothing in this Agreement shall limit our right to make other
arrangements with respect to the Units with any person, including the
appointment of other selling dealers.
17. No provision of this Agreement shall be construed in favor of or
against any party by reason of the extent to which any such party, its
affiliates or their respective employees or counsel participated in the drafting
thereof.
18. This Agreement represents the entire agreement between the parties and
supersedes any prior agreement entered into by the parties hereto (or their
respective
14
predecessors) with respect to the Units. In the event that any provision hereof
is held to be invalid or unenforceable by any court of competent jurisdiction,
such invalidity shall be limited to the jurisdiction in question, and such
invalidity to the extent so held by such court.
19. This Agreement shall be governed by the laws of the State of New York
without reference to conflicts of law principles. The parties irrevocably submit
to the non-exclusive jurisdiction of any state or federal court sitting in New
York City over any suit, action or proceeding arising out of or relating to this
Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
15
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date written below.
Robeco Securities, L.L.C.
By: ________________________________________
Name:
Title:
ACCEPTED:
Name of Firm: ______________________________
By: ________________________________________
Name:
Title:
Address:
---------------------------------------------
---------------------------------------------
---------------------------------------------
Date: ____________________________________
Please return TWO signed originals
of this agreement by U.S. Mail and a copy by fax to:
Robeco Securities, L.L.C.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, III, Esq.
Fax: 000-000-0000
16
Schedule A
The following services constitute the member services that may be provided
pursuant to Section 3(a) of this Agreement:
1. handling inquiries from your customers who own Units ("Members")
regarding the Fund, including but not limited to questions concerning their
investments in the Fund, and reports and tax information provided by the Fund;
2. assisting in the enhancement of relations and communication between
Members and the Fund;
3. assisting in the establishment and maintenance of Members' accounts with
the Fund;
4. assisting in processing repurchase requests from Members;
5. assisting in the maintenance of Fund records containing Member
information, such as changes of address; and
6. providing such other similar services as we may reasonably request to
the extent you are permitted to do so under applicable statutes, rules and
regulations.
17
Schedule B
1. You shall be entitled to charge an upfront sales load of up to 3% of an
investor's investment amount.
2. You shall be entitled to receive member servicing fees at the annual
rate of [ ]% of the aggregate value of Units held by customers referred by you.
The fee shall be calculated monthly and paid quarterly based upon the
average month-end value of Units held by customers during the quarter, and shall
be payable within 45 days after the end of such calendar quarter. The fee shall
be pro-rated for Units that are purchased by a customer or repurchased by the
Fund other than at the end of a calendar quarter, based on the number of months
during the quarter such Units were outstanding and the average value of such
Units as of the last business day of the quarter, in the case of Units that have
been purchased by customers, and the value of such Unit as of the date of
repurchase, in the case of Units that have been repurchased by the Fund. You
shall be entitled to retain for your own account 100% of any fees received by it
under this Agreement.
In accordance with applicable NASD Conduct Rules, the parties understand
and agree that, pursuant to limitations imposed by the NASD, no payments will be
made to you under this Agreement to the extent payments made to us and any other
NASD member exceed, in the aggregate, 6% of the total proceeds proposed to be
received by the Fund in respect of sales of Units registered under the Fund's
current registration statement on Form N-2.
18
SCHEDULE B
Bank of America
Bear Xxxxxxx
Xxxxxxx Xxxxxx
CIBC
XX Xxxxxx
LPL Financial Services
Xxxxxxx Xxxxx
Xxxxxx Xxxxxxx
NFP (National Financial Partners)
Xxxxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxx
UBS
US Trust
Wachovia
